Ministers’ Deputies

Annotated order of Business and decisions adopted

CM/Del/Dec(2012)1150 28 September 2012



1150th Meeting (DH), 24-26 September 2012



CONTENTS

A. General items 5

B. Examination of cases – Proposals from the Chair 7

C. Classification of cases 88

D. Supervision of payment of the just satisfaction 89

E. Action plans 89

F. Adoption of final resolutions – Preliminary list 90

APPENDICES 96

LIST OF PARTICIPANTS

The 1150th meeting of the Ministers’ Deputies opened on 24 September 2012 at 10.00 a.m. under the chairmanship of Mr J. Dallerès, Deputy for the Minister for Foreign Affairs of Andorra (in red, invited experts from the capitals).

PRESENT / PRESENTS

ALBANIA / ALBANIE

Mr R. Hoxha

Ms L. Mandija

ANDORRA / ANDORRE

Mr J. Dallerès, Chairman/ Président

Mr A. Jordi

Ms F. Aleix Lartigue

Mr J. Forner

ARMENIA / ARMENIE

Mr A. Papikyan

Mr S. Kartashyan

AUSTRIA / AUTRICHE

Mr S. Rutkowski

AZERBAIJAN / AZERBAIDJAN

Mr J. Mirzayev

Mr A. Gunashov

BELGIUM / BELGIQUE

Mr A. Cools

Ms M. Janssens

BOSNIA AND HERZEGOVINA /

BOSNIE-HERZEGOVINE

Mr B. Babić

Ms B. Skalonjic

BULGARIA / BULGARIE

Mr A. Tehov

Mr A. Ananiev

CROATIA / CROATIE

Mr I. Mintas

CYPRUS / CHYPRE

Ms T. Constantinidou

Mr S. Hatziyiannis

Mr T. Pittakis

CZECH REPUBLIC /

REPUBLIQUE TCHEQUE

Mr M. Bouček

DENMARK / DANEMARK

Mr C. von Barnekow

ESTONIA / ESTONIE

Mr P. Pedak

Mr T. Tang

FINLAND / FINLANDE

Mr P. Hyvönen

Ms T. Leikas-Botta

FRANCE

Ms M. Bilocq

GEORGIA / GEORGIE

Mr M. Jgenti

Mr M. Longurashvili

GERMANY / ALLEMAGNE

Mr J. Holzenberger

GREECE / GRECE

Mr A. Dendoulis

Mr T. Zafeirakos

Ms O. Patsopoulou

HUNGARY/ HONGRIE

Ms A. Tóth-Ferenci

ICELAND / ISLANDE

-

IRELAND / IRLANDE

Mr P. Gunning

Mr D. Chiheb

ITALY / ITALIE

Ms P. Accardo

LATVIA / LETTONIE

Ms A. Liepina

Mr. M. Klīve

Ms K. Lice

LIECHTENSTEIN

Mr D. Ospelt

LITHUANIA / LITUANIE

Ms U. Matulevičiené

LUXEMBOURG

Ms A. Kayser-Attuil

MALTA / MALTE

Mr A. Ghigo

REPUBLIC OF MOLDOVA /

REPUBLIQUE DE MOLDOVA

Ms T. Pârvu

Ms L. Ilieş

M. L. Apostol

MONACO

-

MONTENEGRO

Mr Z. Pazin

NETHERLANDS / PAYS-BAS

Mr J. Rademaker

NORWAY / NORVEGE

Mr P. Wille

Mr J. Høvik

POLAND / POLOGNE

Ms E. Suchożebrska

Ms K. Bralczyk

Ms M. Borowska

PORTUGAL

Mr L.F. Castro Mendes

Mr L. Sequeira

ROMANIA / ROUMANIE

Mr C. Urse

Ms M. Marin

Mr D. Dumitrache

RUSSIAN FEDERATION /

FEDERATION DE RUSSIE

Mr A. Alekseev

Mr I. Podolskiy

Mr V. Ermakov

Mr K. Saydrakhman

Ms N. Zyabkina

Mr M. Mikhaylov

Mr M. Tokarev

Ms K. Panteleeva

Ms Y. Tsimbalova

Mr P. Ulturgashev

Mr O. Surikov

Mr I. Vasilyev

Mr V. Markovskiy

Ms V. Glybochka

SAN MARINO / SAINT-MARIN

Ms M. Bovi

SERBIA / SERBIE

Ms V. Radonjic-Rakic

Ms V. Rodić

SLOVAK REPUBLIC /

REPUBLIQUE SLOVAQUE

Mr M. Babicz

Ms K. Čahojová

SLOVENIA / SLOVENIE

Mr D. Bergant

Ms B. Sušnic

Mr L. Bembič

SPAIN / ESPAGNE

Mr L. Tarin Martin

SWEDEN / SUEDE

Mr C.-H. Ehrenkrona

Ms S. Finnigan

SWITZERLAND / SUISSE

Mr B. Gubler

“THE FORMER YUGOSLAV REPUBLIC OF

MACEDONIA” / « L'EX-REPUBLIQUE

YOUGOSLAVE DE MACEDOINE »

Mr P. Pop-Arsov

TURKEY / TURQUIE

Mr R.E. Soysal

Ms N. Erdem-Ari

Mr U. Acar

Mr Y. Yeşilada

Ms F.B. Okur

Ms E. Demircan

Mr G. Seker

Ms A. Emüler

Ms S. Karabacak

Ms G. Plümer Küçük

Mr S. Dalyan

Mr I. Sari

UKRAINE

Ms O. Pasheniuk

Mr N. Kulchytskii

Ms Z. Lukianenko

Ms D. Pistriak

Mr M. Bem

UNITED KINGDOM / ROYAUME-UNI

Ms K. Jones

*

* *

EUROPEAN UNION

Ms L. Pavan-Woolfe

Ms K. Markovová

*

* *

A. General items

Item a.

Agenda and approbation of the Order of Business

Decisions

i) Working methods

The Deputies instructed the Secretariat to prepare as a rule preliminary draft decisions for all the cases under Article 34 of the Convention, appearing on the order of business, to be circulated with the revised draft order of business, unless the State or States under examination object(s). In case of an objection, the Secretariat will prepare points for consideration to guide the debate.

ii) Order of business

The Deputies

1. decided to postpone consideration of the cases of Cyprus and Varnava against Turkey to their 1157th meeting (December 2012);

2. approved the order of business revised accordingly.

* * *

Item b.

Preparation of the next Human Rights meeting – 1157th meeting (4-6 December 2012)

Decisions

The Deputies

1. took note of the preliminary indicative list of cases to be included in the draft Order of Business for the 1157th meeting (December 2012):

Application / Requête

Case / Affaire

Judgment of / arrêt du

Final on / définitif le

CZECH REPUBLIC / REPUBLIQUE TCHEQUE

57325/00

D.H. AND OTHERS (DH-DD(2012)803)

13/11/2007

Grand Chamber

ITALY / ITALIE

22461/93

32190/96

64705/01

45867/07+

CETERONI GROUP (list 1 and list 2 of cases)

LUORDO GROUP

MOSTACCIUOLO GROUP (list of cases)

GAGLIONE AND OTHERS

DD(2012)4 add2

DH-DD(2012)806F

15/11/1996

17/07/03

29/03/2006

21/12/2010

17/10/03

Grand Chamber

20/06/2011

ROMANIA / ROUMANIE

57001/00

STRĂIN AND OTHERS (list of cases)

21/07/2005

30/11/2005

SERBIA / SERBIE

3102/05

EVT COMPANY (list of cases)

21/06/07

21/09/07

2. instructed the Secretariat to prepare a document presenting the tools available to the Committee of Ministers to supervise the execution of judgments and suggesting ideas for further tools, with a view to holding a debate at their next Human Rights meeting on whether more effective measures are needed in respect of States that fail to implement judgments of the Court in a timely manner, paying particular attention to violations disclosing a systemic issue at national level.

* * *

Item c.

Supervision of the execution of judgments of the European Court of Human Rights –

Preliminary draft annual report 2012

Decision

The Deputies instructed the Secretariat to prepare the draft annual report 2012 along the same lines as the 2011 report and to present a first preliminary draft, and a detailed time table for the adoption of the 2012 report, at the 1157th meeting (December 2012) (DH).

B. Examination of cases – Proposals from the Chair

The state of execution of the cases which do not appear in the present order of business may be obtained from the Secretariat or on the website of the Department for the execution of the judgments and decisions of the European Court.

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

1

11

CAKA GROUP

ALBANIA

08/03/2010

Unfairness of criminal proceedings against the applicants

Follow-up in particular of the requests for the reopening of the impugned national proceedings, in accordance with the decision adopted at the 1128th meeting

1128th meeting

December 2011

2

14

DRIZA GROUP

ALBANIA

02/06/2008

Non-enforcement of final domestic court and administrative decisions relating to the applicants’ right to restitution or compensation (whether pecuniary or in kind) for property nationalised under the communist regime

Follow-up to the decision adopted at the 1144th DH meeting, inviting the authorities in particular to provide the Committee, in good time for the September meeting, with information on the results achieved following the steps taken with a view to establishing a list of final decisions granting restitution or compensation for property nationalised under the communist regime

1144th meeting

June 2012

3

17

MAHMUDOV AND AGAZADE GROUP

AZERBAIJAN

18/03/2009

Violation of right to freedom of expression

Assessment of the state of progress in taking general measures following the decision adopted at the 1144th meeting

1144th meeting

June 2012

4

20

M.S.

BELGIUM

30/04/2012

Applicant’s forced return to Iraq, following unlawful periods of detention

Follow-up to the decision adopted at the 1144th DH meeting, inviting the authorities “to provide, as a matter of urgency, concrete information on the individual measures taken or envisaged in response to the finding of a violation of Article 3”

1144th meeting

June 2012

5

22

M.S.S.

BELGIUM AND GREECE

21/01/2011

Expulsion of an asylum seeker from Belgium to Greece

Assessment, in accordance with the decision adopted at the 1144e DH meeting, of the information regarding the recent case-law of the Aliens’ Appeals provided by the Belgian authorities in response to the violation of Article 13

1144th meeting

June 2012

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

6

25

AL HUSIN

BOSNIA AND HERZEGOVINA

09/07/2012

Potential violation of Article 3 of the Convention in the event of the applicant’s deportation to Syria

The authorities of Bosnia and Herzegovina are expected to provide assurances that the applicant will not be deported to Syria

New judgment

7

27

SEJDIC AND FINCI

BOSNIA AND HERZEGOVINA

22/12/2009

Violation of right to free elections and discrimination against minorities

Follow-up to Interim Resolution CM/ResDH(2011)291 and to the decision adopted at the 1147th meeting (regular meeting)

1147th meeting

July 2012

8

29

ČOLIĆ AND OTHERS GROUP

BOSNIA AND HERZGOVINA

28/06/2010

Non-enforcement of final domestic court decisions ordering payment of compensation in respect of war damages

Assessment of the progress achieved in taking general measures

1100th meeting

December 2010, page 13

9

32

DIMITROV AND HAMANOV

FINGER

KITOV GROUP

DJANGOZOV GROUP

BULGARIA

10/08/2011

10/08/2011

03/07/2003

08/10/2004

Excessive length of proceedings, pilot judgments, deadline expired in August 2012

Assessment of the law adopted by the Bulgarian authorities in response to the pilot judgments Dimitrov and Hamanov and Finger and of one new Bill submitted to the Bulgarian Parliament.

1136th meeting

March 2012

10

34

SKENDZIC AND KRZNARIC GROUP

CROATIA

20/04/2011

Lack of an effective and independent investigation into crimes committed during the Croatian Homeland War (1991-1995) (violations of Article 2 in procedural limb).

Taking stock of the progress achieved in taking general and individual measures

First examination Classification at the 1120th meeting

September 2011

11

36

RANTSEV

CYPRUS AND RUSSIAN FEDERATION

10/05/2010

Failure to provide practical and effective protection against human trafficking and exploitation, and failure to conduct an effective investigation into the applicant's daughter's death (Cyprus). Failure to investigate alleged trafficking (Cyprus and Russia)

Examination of the individual measures in accordance with the decision adopted at the 1136th DH meeting

(for info: at their 1144th DH meeting, the Deputies decided to close their examination of the general measures in respect of both states)

1136th meeting

March 2012

1144th meeting

June 2012

12

39

MICHELIOUDAKIS

DIAMANTIDES No. 2 GROUP

GREECE

03/07/2012

19/08/2005

Excessive length of criminal proceedings and lack of an effective remedy (pilot judgment) (deadline expires on 03/07/2013).

To stress the importance of timely compliance with the pilot judgment and to invite the Greek authorities to keep the Committee regularly informed on the progress of implementation of the measures envisaged

New judgment 1136th meeting

March 2012

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

13

41

HIRSI JAMAA AND OTHERS

ITALY

23/02/2011

Interception at sea and transfer to Libya of 11 Somalian and 13 Eritrean nationals

Information awaited in particular on the urgent individual measures. At their 1144th DH meeting, the Deputies decided to « follow developments closely and invited the Italian authorities to provide rapidly all relevant new information »

1144th meeting

June 2012

14

44

SULEJMANOVIC

ITALY

06/11/2009

Inhuman or degrading conditions of detention (overcrowding)

Follow-up to the decision adopted at the 1136th DH meeting, during which the Deputies took note of the action plan provided by the authorities and requested additional information

1136e meeting

March 2012

15

47

SACALEANU GROUP

ROMANIA

06/12/2005

Failure or delay of the public authorities or other legal persons under the responsibility of the State to abide by final court decisions

Assessment of the action plan submitted by the authorities on 16 January 2012, on the basis of a Memorandum prepared by the Secretariat

1059th meeting

(page 177)

June 2009

16

50

ALEKSEYEV

RUSSIAN FEDERATION

11/04/2011

Repeated bans on gay marches

New examination of the situation in the light of further information to be provided by the authorities (in their decision adopted at 1144th DH meeting, the Deputies underlined the need to receive certain information, in particular statistics)

1144th meeting

June 2012

17

54

ANANYEV AND OTHERS

RUSSIAN FEDERATION

10/04/2012

Structural problem highlighted by the European Court, applying the pilot-judgment procedure: poor conditions of pre-trial detention in the remand centres under the authority of the Ministry of Justice (Article 3) and lack of an effective remedy in this respect (Article 13)

Assessment of the progress in the preparation of a binding time-frame for the setting-up of domestic remedies requested by the Court (the deadline is 10 October 2012). The Court indicated that this time-frame should be produced in co-operation with the Committee of Ministers

1144th meeting

June 2012

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

18

56

GARABAYEV GROUP

RUSSIAN FEDERATION

30/01/2008

Different violations related to extradition (Articles 3, 5 and 13)

Follow-up to the decision adopted at the 1144th DH meeting on two issues raised by the Iskandarov case: progress of the domestic investigation into his kidnapping and general measures to prevent new similar violations

1144th meeting

June 2012

19

61

66

KHASHIYEV AND AKAYEVA GROUP

ISAYEVA AND ABUYEVA AND OTHERS

RUSSIAN FEDERATION

06/07/2005

06/07/2005

11/04/2011

Group of cases concerning action of the security forces in the Chechen Republic

Failure to plan and execute a military operation in the village of Katyr-Yurt in February 2000 with the requisite care for the life of civilians ; in this respect lack of an effective investigation and lack of an effective remedy. In the case of Abuyeva and others, the Court considered under Article 46 of the Convention that the authorities manifestly disregarded its findings made in the Isaeyva judgment when conducting a second investigation.

Follow-up to the decision adopted at 1144th DH meeting, during which the authorities were invited to provide a number of clarifications on the issues raised in the framework of domestic investigations (e.g. statute of limitations, application of Amnesty, etc)

1144th meeting

June 2012

20

69

KIYUTIN

RUSSIAN FEDERATION

15/09/2011

Discrimination of the applicant, a foreigner living in Russia with his wife and child, due to the authorities’ refusal to issue him a residence permit on the ground that he is HIV positive (Articles 14 in conjunction with 8).

Transfer of the case from the enhanced to standard procedure following the adoption of individual measures (residence permit issued on 21/03/2012).

 

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

21

71

KURIĆ AND OTHERS

SLOVENIA

26/06/2012

Violation of right to private and family life of “erased” persons (i.e. “erasure” of resident status of an entire category of former citizens of Socialist Federal Republic of Yugoslavia at the time of Slovenia’s declaration of independence).

To stress the importance of timely compliance with the pilot judgment and to invite the Slovenian authorities to provide information to the Committee on the measures envisaged

New judgment

22

73

MARTINEZ MARTINEZ

SPAIN

18/01/2012

Violation of the right to respect for private and family life due to the fact that, since 2001, the applicant and his family are suffering from the noise caused by the music bar on the terrace of a club located at a distance of 3-4 meters from their house (Article 8).

Proposed for transfer to the standard procedure

 

23

74

HULKI GUNES GROUP

TURKEY

19/09/2003

Unfairness of criminal proceedings

Follow-up to the questions raised at the 1144th meeting

1144th meeting

June 2012

24

76

ÜLKE

TURKEY

24/04/2006

Ill-treatment due to repetitive convictions for refusing to perform military service

Follow-up to the questions raised at the 1144th meeting

1144th meeting

June 2012

25

78

ORMANCI GROUP

ÜMMÜHAN KAPLAN

TURKEY

21/03/2005

20/06/2012

Excessive length of judicial proceedings, lack of an effective remedy (pilot judgment, deadline expires on 20/06/2013).

Consolidated action plan setting out measures taken or envisaged (including setting up of an effective remedy) is awaited.

1100th meeting

December 2010, page 447

New judgment

26

80

YURY NIKOLAEVICH IVANOV

ZHOVNER GROUP

UKRAINE

15/01/2010

29/09/2004

Non-enforcement of domestic court decisions, pilot judgment, deadline expired in July 2011

Evaluation of the situation in the light of the recent developments (adoption of the law providing for a remedy in June 2012)

1144th meeting

June 2012

27

83

HIRST No. 2 GROUP

UNITED KINGDOM

06/10/2005

Blanket ban on voting imposed automatically on the applicants due to their status as a convicted offenders detained in prison (Violation of Article 3 of Protocol No. 1). Pilot judgment of 23/11/2010, Greens and M.T. (60041/08 and 60054/08, final on 11/04/2011).

Follow-up to the decision adopted at the 1120th DH meeting, to examine this group of cases again once the Grand Chamber judgment in Scoppola No. 3 was delivered, reactivating the 6 months deadline in the Greens and M.T. pilot judgment for the authorities to initiate legislative proposals (the Scoppola judgment was delivered on 22 May 2012)

1120th meeting

September 2011

28

85

S. AND MARPER

UNITED KINGDOM

04/12/2008

Unjustified interference with the applicants' right to respect for their private life due to the retention for an indefinite period of cellular samples, fingerprints and DNA profiles taken from them in 2001, in connection with their arrest for offences for which they were ultimately not convicted (violation of Art. 8)

Evaluation of the status of execution in this case, in the light of the legislative measures adopted in England and Wales and the replies given by the authorities to the outstanding questions raised in Secretariat Memorandum (CM/Inf/DH(2011)22rev).

Examination of the possibility of transferring the case for examination in the standard procedure

1115th meeting

June 2011

ALBANIA

Application: 44023/02

Judgment final on: 08/03/2010

CAKA GROUP v. Albania

Enhanced procedure: Urgent individual measures

Reference texts:

Revised action plan (Caka, Berhani, Laska and Lika, Shkalla) DH-DD(2012)786E

Communication from the authorities DH-DD(2012)724E

Communication from the authorities DH-DD(2012)731E

Decision adopted at the 1128th meeting

Case description: Unfairness of criminal proceedings due in particular:

- in the case of Caka, to the failure to secure the appearance at the applicants' trial of certain witnesses and to the first instance court's failure to have due regard to the testimonies of four witnesses given in the applicant's favor (violation of Article 6 § 1 combined with Article 6 § 3 (d));

- in the case of Berhani, to the failure to secure the appearance at the applicant's trial of certain witnesses, the lack of a procedure for identifying persons and items and the lack of convincing evidence in the domestic court's judgments justifying the applicant's conviction (violation of Article 6§1);

- in the case of Laska and Lika, to the failure to remedy irregularities at the applicants' trial, which occurred at the investigation stage and which were related to the identification of the suspects (violation of article 6§1);

- in the case of Shkalla, to the lack of guarantees surrounding criminal proceedings in absentia against the applicant (violation of Article 6§1); the case also concerns lack of access to the Constitutional Court, which calculated the time-limit to lodge an appeal without taking into account the date on which the applicant had been truly informed of his conviction (violation of Article 6§1);

- in the case of Cani, to the fact that during criminal proceedings against him, the applicant was denied the right to defend himself at a public hearing before the Court of appeal and the Supreme Court (violation of Article 6§1).

Status of execution: the Albanian authorities provided information on individual measures in July and August 2012 (DH-DD(2012)724E and DH-DD(2012)731E). They provided a revised action plan concerning the cases of Caka, Berhani, Laska and Lika, Shkalla (DH-DD(2012)786).

Individual measures: the Supreme Court has decided to reopen the proceedings in the cases of Caka, Berhani, and Laska and Lika (decisions of 15.02.2012 for Berhani and of 07.03.2012 for Caka and Laska and Lika). These decisions have been published and the cases remitted before the trial and appeal courts. The request of the applicant Shkalla to reopen the initial proceedings is still pending before the Supreme Court. At this stage, no information is available on whether the applicant Cani has lodged a similar request.

Concerning the applicants’ situation: the applicants Caka, Berhani and Shkalla are detained; the applicants Laska and Lika were released on parole, however the authorities had indicated that for the applicant Laska, this measure was temporary and that he would have to return to prison; according to the Court’s judgment, the applicant Cani is detained.

General measures: the judgments have been translated into Albanian and disseminated to the relevant judicial authorities. Other measures aimed at developing practices have been taken, in particular: the Prosecutor General's office has sent out instructions to prosecutors “setting out guidelines to avoid similar violations” and the possibility of including these judgments in the academic programme of the National School for the judiciary is being examined. This information calls for additional explanations and updating (e.g. on the decisions taken concerning the training of magistrates), in relation to which bilateral contacts are under way between the authorities and the Secretariat.

CAKA GROUP

Application

Case

Judgment of

Final on

44023/02

CAKA

08/12/2009

08/03/2010

847/05

BERHANI

27/05/2010

04/10/2010

12315/04

LASKA AND LIKA

20/04/2010

20/07/2010

26866/05

SHKALLA

10/05/2011

10/08/2011

11006/06

CANI

06/03/2012

06/06/2012

1150th meeting - Notes

At the last examination of the cases of Caka, Berhani and Laska and Lika in December 2011, the Deputies had recalled that the most appropriate form of redress would be a trial de novo or the reopening of the proceedings – if requested by the applicants – in due course and in accordance with the requirements of Article 6 of the Convention. In view of the fact that the applicants Caka, Berhani and Laska and Lika had requested the reopening of their cases before the Supreme Court (which according to the Constitutional Court had the power to reopen despite the absence of a specific law to this effect), the Deputies underlined the urgency of remedying the applicants’ situation.

In response, in the cases of Caka, Berhani and Laska and Lika, the Albanian authorities indicated that in February and March 2012, the Supreme Court, relying on the European Court’s judgments and on the supremacy of the Convention and the judgments of the Court in Albanian law, had accepted the reopening of the proceedings and decided to remit the cases before the trial and appeal courts. These decisions have been published and the files transmitted to the trial and appeal courts. The Deputies might wish to note these decisions with interest.

A specific question is raised however at this stage concerning the reasons why some of the applicants who have obtained a reopening - Caka and Berhani - are still detained.

Indeed it emerges from the Supreme Court decisions (DH-DD(2012)731E) that these applicants are in principle to remain detained during the new proceedings according to their initial conviction (that appears to be still in force). However the Albanian law foresees a possibility for the applicants to request, either the Supreme Court or the court to which the case has been remitted, to suspend the conviction. The applicant Caka lodged such a request before the Supreme Court, which dismissed it considering that the conditions allowing to suspend the conviction were not met because of “the qualification of his conviction as a criminal offence of highly risked for the society”. The Supreme Court however left the retrying court with the opportunity of reviewing this decision. Mr. Berhani has not submitted such a request but still has the possibility of doing so before the trial court.

In this situation, the Deputies might wish to recall the importance of the presumption of innocence (as they did, in similar circumstances, in other cases) and to underline that the initial decisions, imposed following proceedings contrary to the Convention, or the mere danger posed to public order are not sufficient to justify the applicants’ continuous detention (see e.g. Letellier against France, judgment of 26 June 1991, §51). They might wish to note in this context that the Albanian legal system includes a possibility for the applicants still detained, depending on the development of their situation, to request their release in conformity with the requirements of the Convention until a new final decision.

The situation of the applicants Shkalla and Cani is different since no reopening decision has been adopted in their cases.

In any case, in all these cases the Deputies might wish to invite the authorities to inform the Committee of any developments concerning the applicants’ individual situation. The Deputies might also wish to underline the importance of bringing the review proceedings rapidly to an end.

It also appears pertinent to recall that the Deputies had invited the Albanian authorities to continue informing them of developments in the legislative process concerning the introduction of the possibility to reopen proceedings in the Code of Criminal Procedure.

Finally, it is also recalled that further information is awaited on the adoption of general measures, the importance of which could be underlined, in view of the seriousness of the violations found.

The Deputies might wish to continue their examination of this group of cases at their March 2013 meeting at the latest, in light of the action plans announced by the authorities.

Decisions

The Deputies

1. concerning the individual measures, noted with interest the reopening decisions in the Caka, Berhani and Laska and Lika cases, adopted by the Supreme Court following the decision of the Constitutional Court, by giving direct effect to the Convention and the Court’s case law;

2. recalling the importance of the presumption of innocence, underlined the fact that pending the outcome of the new proceedings, the mere initial decisions, imposed following proceedings contrary to the Convention, are not sufficient to justify the applicants’ continuous detention;

3. noted in this context that the Albanian legal system contains a possibility for the applicants still detained, depending on the development of their situation, to request their release in conformity with the requirements of the Convention until a new final decision;

4. underlined the importance of bringing the review proceedings rapidly to an end, invited the authorities to inform the Committee of any development of the applicants’ individual situation;

5. recalled their invitation to the Albanian authorities to continue informing the Committee of developments on the legislative process concerning the codification of the reopening of proceedings;

6. concerning the general measures, recalled that further information is also awaited on the adoption of measures to remedy the serious shortcomings revealed by the Court’s judgments;

7. decided to continue their examination of this group of cases at their March 2013 meeting (DH) at the latest, in the light of the action plans announced by the authorities.

ALBANIA

Application: 33771/02

Judgment final on: 02/06/2008

DRIZA GROUP v. Albania

Enhanced procedure: complex problem

Reference texts:

Action Plan (general measures for the Driza group) DH-DD(2011)316

Action Plan (individual measures, Driza case) DH-DD(2011)663E

Action Plan (individual measures, Gjonbocari case) DH-DD(2011)662E

Action Plan (individual measures, case of Vrioni and others) DH-DD(2011)661E

Communication from the authorities DH-DD(2012)729 + appendix 1 and appendix 2

Communication from the authorities DH-DD(2012)785

Information document : CM/Inf/DH(2011)36

Decision adopted at the 1144th meeting

Case description: Structural problem of failure to enforce final domestic judicial and administrative decisions relating to the right of the applicants to restitution or compensation (whether pecuniary or in kind) for property nationalised under the communist regime (violations of Article 6§1 and Article 1 of Protocol No. 1). Lack of an effective remedy in this respect (violations of Article 13). Bailiffs' failure to secure enforcement of a Supreme Court decision, which recognised the applicants' property claim and ordered the occupiers to cease occupation of the untitled land (violation of Article 6§1, and of Article 1 of Protocol No. 1 in the case of Bushati).

Lack of legal certainty and lack of impartiality of the Supreme Court (violations of Article 6§1, in the case of Driza). Excessive length of civil proceedings and lack of an effective remedy in this respect (violations of Articles 6§1 and 13, case of Gjonbocari and others).

Status of execution: Individual measures: several questions remain open, in particular:

- in the case of Driza, the plot of land in question has been registered in the applicant’s name but a final property certificate still needs to be delivered to him;

- in the case of Gjonbocari, information is awaited on whether the civil proceedings that the Court held to be excessively long are still ongoing and if yes, on the measures taken with a view to their acceleration. The other individual measure has been adopted: the European Court indicated (§ 101) that the Government had to execute a Supreme Court decision ordering a local land commission to take a decision; the authorities confirmed that this had been done:

- in the case of Caush Driza, the Court noted that the applicant was entitled to compensation in kind pursuant to a final national decision and that the authorities were required to take the necessary steps to secure the enforcement of that decision (§ 101); no information has been provided to date;

- in the cases of Delvina and Eltari, the Court reserved the question of the application of Article 41.

All the individual measures have been adopted in the cases of Beshiri and others, Bushati and others, Hamzaraj (No. 1), Nuri, Ramadhi and five others, Vrioni and others.

General measures: an action plan was provided by the Albanian authorities to the Committee of Ministers on 2 May 2011; the Secretariat made observations regarding the action plan in the memorandum CM/Inf/DH(2011)36, prepared for the 1120th meeting (September 2011). In December 2011, the authorities sent to the Secretariat a copy of their draft global strategy (2012-2017) concerning not only the execution of final decisions ordering the restitution of nationalised properties or a compensation, but also more general questions regarding property rights. At the 1144th meeting (June 2012), the Committee of Ministers took note of the revised global strategy (2012-2020), insisting however on the necessity for the Albanian authorities to rapidly make concrete progress in the execution of the present group of cases. By letter received on 2 August 2012, the authorities indicated that the global strategy had been adopted on 27 June 2012 by the Albanian Council of Ministers (see document DH-DD(2012)729).

The general measures required in the case of Gjonbocari to remedy the excessive length of civil proceedings and the lack of an effective remedy, are being examined in the framework of the Marini case (3738/02).

DRIZA GROUP

Application

Case

Judgment of

Final on

33771/02

DRIZA

13/11/2007

02/06/2008

7352/03

BESHIRI AND OTHERS

22/08/2006

12/02/2007

6397/04

BUSHATI AND OTHERS

08/12/2009

14/02/2012

08/03/2010

14/05/2012

10810/05

CAUSH DRIZA

15/03/2011

15/06/2011

49106/06

DELVINA

08/03/2011

08/06/2011

16530/06

ELTARI

08/03/2011

15/09/2011

10508/02

GJONBOCARI AND OTHERS

23/10/2007

31/03/2008

45264/04

HAMZARAJ No.1

03/02/2009

06/07/2009

12306/04

NURI

03/02/2009

06/07/2009

38222/02

RAMADHI AND 5 OTHERS

13/11/2007

02/06/2008

35720/04+

VRIONI AND OTHERS1

29/09/200907/12/2010

29/12/2009

11/04/2011

1150th meeting - Notes

At the 1144th meeting (CM-DH, June 2012), the Deputies insisted on the necessity for the Albanian authorities to rapidly make concrete progress in respect of the execution of final, domestic decisions (administrative or judicial) decisions relating to the right to restitution or compensation for property nationalised under the communist regime, and of the establishment of an effective remedy in this field. Concerning the execution of final decisions, the Deputies noted that the first objectives were to: establish a list of final decisions; finalise the land value map; and then, on the basis of these elements, calculate the cost of the execution of the decisions, in order to be able to define the resources needed, adopt the final execution mechanism, and execute - on their own motion - the decisions at issue. The Deputies also welcomed the information provided at the same meeting on the steps already under way with a view to establishing a list of final decisions, and encouraged the authorities to provide the Committee with information on this point in good time for the 1150th meeting (CM-DH, September 2012) and to keep the Committee regularly informed of the measures taken with a view to achieving the next steps within the best possible timeframe.

Since then, the authorities indicated that the global strategy on property rights, that enshrines the measures to be taken with a view to executing the present judgments, has been adopted (DH-DD(2012)729). They also provided details on a certain number of measures to implement this strategy (DH-DD(2012)785).

However, at their 1144th meeting, the Deputies were already informed of the draft global strategy and had particularly “insisted on the necessity for the Albanian authorities to make rapidly concrete progress” primarily as regards the establishment of the list of final decisions. In this respect, the authorities indicated (DH-DD(2012)785) that the Ministry of Justice counted 45 978 administrative decisions taken between 1993 and 2005 (the work is still ongoing for the years after). For each of these decisions, it has information including in particular the sense of the decision taken, the applicant’s name and the date of the decision. However these figures are not final. Furthermore they concern the total number of decisions delivered and not only the decisions that are final and thus need to be executed. The Ministry also counted 639 final judicial decisions delivered between 1995 and 2011, in which property rights were acknowledged. However this figure is not certain either, certain archives having been damaged.

The Committee, however, did not receive information concerning the measures envisaged in response to the findings of violations of Article 13, or on the outstanding individual measures.

On a more general note, the HRTF 1 project ended on 30 June 2012 and it can be noted that a certain amount of progress has been achieved in the execution of these judgments since the beginning of this project. Starting with fragmented information on the measures envisaged in response to these judgments, the Committee of Ministers now has an action plan from the Albanian authorities. The latest activities and in particular the last bilateral consultations held in Tirana in the framework of the HRTF 1 project made it possible for the Deputies to define clearly, during their 1144th meeting, the next concrete objectives to be achieved. However, despite the progress made, it remains worrying that five years after the first final judgment in this group of cases, neither the number of final decisions to be executed nor the cost of their execution are known. It therefore appears essential to be particularly vigilant in ensuring that the concrete progress requested by the Committee of Ministers is achieved.

As underlined by the Committee several times, it is equally fundamental that the requirements of Article 13 (effective remedy) be taken into account. In this respect, it should be noted that 80 similar requests are presently pending before the Court.

Finally, it should be noted that on 31 July 2012 the Court delivered a pilot judgment concerning the general problem at issue in this group of cases (Manushaqe Puto and others against Albania, applications No. 604/07, 43628/07, 46684/07 and 34770/09), that supports the Committee of Ministers’ requests. This judgment is not yet final.

Decisions

The Deputies

1. recalled that at their 1144th meeting (June 2012), they invited the Albanian authorities to:

- establish a list of final decisions to be executed,

- finalise the land value map,

- and then, on the basis of these elements, calculate the cost of the execution of the decisions, in order to be able to define the resources needed, adopt the final execution mechanism, and execute - of their own motion - the decisions at issue;

2. took note of the adoption by the Albanian Council of Ministers, on 27 June 2012, of the global strategy on property rights (2012-2020);

3. noted that the Albanian authorities have drawn up a list of 639 final judicial decisions, delivered between 1995 and 2011, and invited the authorities to update the Committee on the next set of measures that will be taken with a view to the execution of these decisions;

4. took note of the provisional indications given concerning the total number administrative decisions delivered between 1993 and 2011 and invited in this respect the Albanian authorities to indicate when they will be in a position to draw up a definitive list of the final administrative decisions to be executed;

5. in view of the crucial importance for the viability of the Convention system of avoiding a flood of repetitive applications before the European Court of Human Rights, insisted strongly on the importance of taking into account the Court’s findings in respect of Article 13 (effective remedy);

6. more generally, while noting the progress obtained thanks to the support from the “Human Rights” Trust Fund (HRTF 1 project), expressed their concern about the absence of concrete result at this stage, where the first judgment of this group has been final for more than five years;

7. noted that the Court delivered on 31 July 2012 the pilot judgment Manushaqe Puto and others against Albania concerning these questions, which is not yet final;

8. concerning individual measures, took note of the information given at the meeting on the Caush Driza case; noted that according to the information previously provided by the Albanian authorities, all the individual measures have been adopted in the cases of Beshiri and others, Bushati and others, Hamzaraj (No. 1), Nuri, Ramadhi and five others, and Vrioni and others; and recalled that additional information is awaited on the outstanding individual measures in the cases of Driza and Gjonbocari;

9. decided to take stock of the progress achieved in this group of cases at their 1157th meeting (December 2012) (DH).

AZERBAIJAN

Application: 35877/04

Judgment final on: 18/03/2009

MAHMUDOV AND AGAZADE GROUP v. Azerbaijan

Enhanced procedure: complex problem

Reference texts:

Information document CM/Inf/DH(2011)7

Action Plan on the Mahmudov group DH-DD(2011)1078

Action plan in the cases of Farhad Aliyev, Salayev and Muradverdiyev DH-DD(2011)1081E

Observations on the human rights situation in Azerbaijan. Freedom of expression, freedom of association, freedom of peaceful assembly CommDH(2011)33

Information provided by the Azerbaijani authorities concerning the observations of the Commissioner for Human Rights. Freedom of expression, freedom of association, freedom of peaceful assembly CommDH(2011)34

Statement of the Secretary General of the Council of Europe, 20/04/2012

National Programme for Action to Raise Effectiveness of the Protection of Human Rights and Freedoms:

DH-DD(2012)260E

Communication from the authorities DH-DD(2012)837E

Decision adopted at the 1100th meeting (page 26) (November-December 2010)

Decision adopted at 1108th meeting (March 2011)

Decision adopted at 1115th meeting (June 2011)

Decision adopted at the 1128th meeting (December 2011)

Decision adopted at the 1136th meeting (March 2012)

Decision adopted at the 1144th meeting

Case description: Violations of the right to freedom of expression (violations of Article 10) of the applicants, journalists, due in particular to (in both cases) unjustified use of imprisonment as a sanction for defamation (the Court found no special circumstances justifying such a sanction, such as incitement to violence or racial hatred, in any of the cases); (in Fatullayev), insufficient reasons invoked to justify defamation as regards some statements and arbitrary application of anti-terror legislation to sanction other subsequent statements.

The Fatullayev case also concerns violations of the right to an impartial tribunal as the judge in the first defamation case had already found against the applicant in a civil defamation case based on the same statements (violation of Article 6§1); declarations made by the public prosecutor in the case related to the application of the anti-terror legislation disrespected the presumption of innocence of the applicant (violation of Article 6§2).

In the first case, the applicants never served their prison sentences as a result of an amnesty; in the Fatullayev case the applicant was still serving his eight-year prison sentence when the Court's judgment was delivered and the Court accordingly ordered his immediate release.

Status of execution: Individual measures: No other measure was considered necessary in the first case following the applicants' amnesty. In the second case, the applicant's convictions were quashed by the Supreme Court and a presidential pardon secured his release. At their 1128th meeting (November-December 2011), the Committee of Ministers considered that, in light of the measures taken “the situation of the applicants [in these cases] did not call for other individual measures”.

General measures:

1. Measures taken so far

a) With regard to violations of Article 10 of the Convention

The judgments of the European Court have been translated and disseminated among judges and other legal professionals and were included in the curricula for the training of judges.

b) With regard to violations of Article 6 of the Convention

The Human Rights Institute of the National Academy of Sciences and the OSCE Office in Baku organised a conference on the strengthening of the legal profession, attended by representatives of the government, Parliament and members of the judiciary. Specific training for judges, prosecutors and law-enforcement officers is also envisaged.

c) The National Programme for Action

The President of Azerbaijan signed on 27/12/2012 “the National Programme for Action to Raise Effectiveness of the Protection of Human Rights and Freedoms”. At its 1136th meeting (March 2012), the Committee noted with satisfaction that the National Programme contained provisions aimed at enhancing the effective execution of the European Court’s judgments in general and of the present judgments in particular. It was also noted that, according to the National Programme, the Presidential Administration was given the task of elaborating “proposals on improving the legislation in order to decriminalise defamation” within 2012 (item 1.2.7 of the Programme).

2. General measures envisaged (presented orally during the bilateral consultations between the authorities and the Secretariat)

At its 1136th meeting, the Committee identified a list of detailed questions and instructed the Secretariat to raise these questions in the context of the bilateral consultations that would be held in Baku.

Representatives from the Department for the Execution of Judgments held bilateral consultations between 3 and 5 April in Baku with the following authorities: the Office of the Government Agent at the Presidential Administration, the Office of the Prosecutor General, the Supreme Court, the Baku Court of Appeal and the Office of the Commissioner for Human Rights. The Secretariat raised the questions posed by the Committee at the 1136th meeting with these authorities. The answers provided orally are summarised as follows (the questions posed by the Committee are highlighted in italics):

1) the time table foreseen for the adoption of the legislation on defamation and its content: The legislative work on defamation is ongoing and is expected to be completed before the end of 2012 as planned in the National Programme for Action. The legislative work aims at introducing amendments to Articles 147 (defamation) and 148 (insult) of the Criminal Code;

2) legislative changes envisaged to align the provisions of the Criminal Code (other than defamation on the basis of which the applicants in these judgments were convicted) with the Convention’s requirements: No legislative amendments are foreseen other than those mentioned above.

3) measures envisaged to prevent arbitrary application of these provisions (in addition to this question, the Secretariat also took the opportunity to inquire whether there were any examples of domestic court decisions demonstrating that the Convention standards on freedom of expression are applied by the Azerbaijani courts): Judges and prosecutors in Azerbaijan follow the judgments of the European Court closely and study them regularly thanks to the awareness raising activities carried out during recent years. There have not been many cases examined recently by the Azerbaijani courts raising similar issues as in the present judgments that could be given as examples demonstrating that domestic legislation is applied by Azerbaijani courts in compliance with the Convention standards. However, the Supreme Court, the Baku Court of Appeal and the Office of the Commissioner stated that they would review recent court decisions with a view to identifying whether or not there are any examples. These examples will be shared with the Committee of Ministers.

4) measures envisaged to prevent violations of Articles 6§1 and 6§2 similar to those found in the case of Fatullayev: the Office of the General Prosecutor indicated that they had studied the judgments of the European Court and issued relevant instructions. Mention was also made to the National Programme of Action which envisages “organisation of training for law enforcement officers and media representatives in order to ensure the presumption of innocence” (time-limit 2012-2013; item 3.8).

MAHMUDOV AND AGAZADE GROUP CONCERNING FREEDOM OF EXPRESSION

Application

Case

Judgment of

Final on

35877/04

MAHMUDOV AND AGAZADE

18/12/2008

18/03/2009

40984/07

FATULLAYEV

22/04/2010

4/10/2010

1150th meeting - Notes

At its 1144th meeting (June 2012), the Committee assessed the above information. In its decision, it:

- called on the Azerbaijani authorities to provide information without further delay on the content of the legislative amendments as well as a clear calendar for their adoption and entry into force;

- recalled in this respect that in his statement of 20 April 2012, the Secretary General offered the Council of Europe’s assistance and advice to the Azerbaijani authorities on how to bring their legislation and practice to the level required of all member States and encouraged the Azerbaijani authorities to take up the offer made by the Secretary General;

- urged the Azerbaijani authorities to provide information to the Committee on the following outstanding issues:

    - the measures envisaged to prevent arbitrary application of domestic law, in particular examples of domestic court decisions demonstrating that domestic legislation is applied by Azerbaijani courts in compliance with the Convention standards;

    - the measures taken or envisaged to prevent violations of Article 6§§1 and 2 similar to those found in the case of Fatullayev, in particular, on how the measures envisaged in the National Programme for Action will guarantee the right to presumption of innocence.

The authorities have not yet responded to the questions raised by the Committee.

Decisions

The Deputies

1. recalled that information was awaited by the Azerbaijani authorities on the outstanding questions raised by the Deputies since their 1136th meeting (March 2012) (DH) namely on:

- the content of the legislative amendments on defamation as well as a clear calendar for their adoption and entry into force;

- the measures envisaged to prevent arbitrary application of domestic law, in particular examples of domestic court decisions demonstrating that domestic legislation is applied by Azerbaijani courts in compliance with the Convention standards;

- the measures taken or envisaged to prevent violations of Article 6§§1 and 2 similar to those found in the case of Fatullayev, in particular, on how the measures envisaged in the National Programme for Action will guarantee the right to presumption of innocence;

2. welcomed the fact that the Azerbaijani authorities have requested the assistance of the Venice Commission with a view to preparing a law on defamation so that its content is in conformity with the Convention’s requirements and, while encouraging them to pursue this work with the Venice Commission speedily and in close co-operation also with the Secretariat, invited the authorities to keep the Committee regularly informed of all the steps of this process, including the precise calendar to be established in that respect;

3. pending the preparation of this law, invited the authorities to take the necessary measures to ensure that the current legislation is applied in accordance with the Convention’s requirements;

4. noted further the information submitted by the authorities on 18/09/2012 (DD (2012)837) and instructed the Secretariat to prepare an assessment of this information;

5. agreed to resume consideration of these questions at their 1157th meeting (December 2012) (DH).

BELGIUM

Application: 50012/08

Judgment final on: 30/04/2012

M.S. v. Belgium

Enhanced procedure: Urgent individual measures + complex problem

Reference texts:

Communication from the applicant’s representative: DH-DD(2012)504F

Communication from the Belgian authorities: DH-DD(2012)519

Decision adopted at the 1144th meeting

Case description: The case concerns the applicant’s return to Iraq from Belgium, in October 2010 without his “free consent” as it was undertaken on the basis of coercion by the authorities aimed at dissuading or at least discouraging him from staying in Belgium, even though they knew that the applicant risked being subjected to inhuman or degrading treatment in Iraq (where he was the subject of an arrest warrant on the basis of anti-terrorism laws), and they did not take any steps aimed at obtaining diplomatic assurances that he would not be the victim of such treatment on his return (violation of Article 3).

The case also concerns different violations linked to the applicant’s detention in a closed transit centre before his return to Iraq as the applicant was formally detained with a view to his expulsion, even though the authorities had themselves concluded that it was impossible to deport the applicant to Iraq in the light of the risk that he would be subjected to inhuman or degrading treatment. The Court underlined in particular that during the impugned periods of detention, the authorities did not undertake any contacts aimed at finding another destination country, and this in a context where the applicant legitimately feared his unlimited detention in Belgium (violation of Article 5§1). Further, there was no speedy decision on the lawfulness of one of the periods of detention (violation of Article 5§4).

Status of execution: Individual measures: it appears from the Court’s judgment and the communication from the applicant’s lawyer to the Committee of Ministers (DH-DD(2012)504F) that the applicant is currently in Iraq and seeks the protection of the Belgian authorities. According to the most recent information available in the judgment, dating from 2010, the applicant was the subject of legal proceedings in Iraq based on the anti-terrorism laws but was released on bail (see §111). No more recent information is available on the applicant’s current situation. The Belgian authorities received a copy of the letter from the applicant’s lawyer and indicated, before the 1144th meeting (June 2012), that steps aimed at executing the judgment are under way (DH-DD(2012)519F). At the 1144th meeting, the Deputies “invited the Belgian authorities to provide, as a matter of urgency, concrete information on the individual measures taken or envisaged in response to the finding of a violation of Article 3”. Since then, the Belgian authorities have indicated that they are working on the complex questions raised in this respect and committed to providing the information sought as soon as possible and at the latest by 31 October 2012.

General measures: before the 1144th meeting (CM-DH, June 2012), the Belgian authorities had indicated that steps aimed at executing the judgment were under way (DH-DD(2012)519F). An action plan/report will be provided shortly by the authorities.

Application

Case

Judgment of

Final on

50012/08

M.S.

31/01/2012

30/04/2012

Decisions

The Deputies

1. recalled that they had invited the Belgian authorities to provide, as a matter of urgency, concrete information on the individual measures taken or envisaged in response to the finding of a violation of Article 3;

2. noted that the Belgian authorities are currently working on the complex questions raised in this respect and are committed to providing this information as soon as possible and at the latest by 31 October 2012;

3. decided consequently to examine this case again at their 1157th meeting (December 2012).

BELGIUM AND GREECE

Application: 30696/09

Judgment final on: 21/01/2011

M.S.S. v. Belgium and Greece

Enhanced procedure:

Structural and complex problem

Reference texts:

Action plan provided by the Belgian authorities DH-DD(2011)566F (restricted)

Action plan provided by the Greek authorities DH-DD(2011)567F:

Communication from Greece (02/05/2012): DH-DD(2012)484E

Communication from Greece DH-DD(2012)427

Action Plan Greece (Rahimi and R.U. cases against Greece) DH-DD(2012)333F

Communication from Greece DH-DD(2012)173E

Communication from Greece (Greek Action Plan on Migration Management) DH-DD(2011)670

Communication from Greece (Official Gazette of the Hellenic Republic - 26/01/2011) DH-DD(2011)671E

Communication from Greece (Official Gazette of the Hellenic Republic - 22/11/2010) DH-DD(2011)672E

Communication from Belgium DH-DD(2012)553F and appendices in Dutch DH-DD(2012)553 add

Information on individual measures (Greece) DH-DD(2011)348F

Information provided by the Greek authorities DH-DD(2011)305F

Communication from NGOs and reply from Greece DH-DD(2012)625

Public statement concerning Greece made under Article 10, paragraph 2, of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, CPT/Inf(2011)10, 15 March 2011

Letter by the Secretary General of the Council of Europe to the Prime Minister of Greece dated 17/03/2011 (http://www.coe.int/t/secretarygeneral/sg/speeches/2011/20110318.pdf)

Information document (CM/Inf/DH(2012)19)

Information document CM/Inf/DH(2012)26 (measures in response to the violation of Article 13 by Belgium)

Decision adopted at the 1108th meeting

Decision adopted at the 1115th meeting

Decision adopted at the 1120th meeting (September 2011)

Decision adopted at the 1144th meeting

Case description: Violations found against Greece: Degrading treatment suffered by the applicant (an Afghan national who entered the European Union through Greece and was fingerprinted there, then arrived in Belgium and applied for asylum, was then transferred back to Greece under the Dublin II Regulation) due to the conditions under which he was detained at the holding centre next to Athens International Airport in 2009 (overcrowding, lack of bed/mattress, insufficient ventilation, no regular access to toilets or sanitary facilities, no outdoor exercise (violation of Article 3).

Situation incompatible with Article 3 on account of the applicant's living conditions due to the authorities' inaction regarding the situation in which he had found himself for several months: living on the street, without recourse or access to sanitary facilities and without means of providing for his essential needs (violation of Article 3).

Finally, the case concerns shortcomings in the Greek authorities' examination of the applicant's asylum request and the risk he faced of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy (violation of Article 13 taken in conjunction with Article 3).

Violations found against Belgium: The transfer of the applicant by Belgium to Greece under the Dublin II Regulation exposed him to the risks arising from deficiencies in the asylum procedure in Greece (violation of Article 3).

The applicant's expulsion, knowingly brought about by the Belgian authorities, exposed him to detention and living conditions in Greece that amounted to degrading treatment (violation of Article 3).

The applicant did not have at his disposal a domestic remedy whereby he might obtain both the suspension of the measure at issue and a thorough and rigorous examination of the complaints arising under Article 3 (violation of Article 13 in conjunction with Article 3).

Status of execution: Individual measures: At their 1144th meeting (June 2012), the Deputies noted that as from 9 May 2012 the applicant enjoys in Belgium refugee status and consequently decided to close the examination of the individual measures. More information on individual measures previously taken is presented in memorandum CM/Inf/DH(2012)19.

General Measures: On 20 July 2011, the Belgian and the Greek authorities provided their respective action plans. At their 1120th meeting (September 2011), the Deputies instructed the Secretariat to prepare a memorandum containing a detailed assessment of the action plans respectively presented by the Belgian authorities and the Greek authorities. At their 1144th meeting, the Deputies approved the assessment presented in the said memorandum (CM/Inf/DH(2012)19).

Concerning Greece:

During their 1120th meeting (September 2011), the Deputies noted with interest the measures presented by the Greek authorities in their action plan, as well as in the National Action Plan on Migration Management, and in particular the entry into force of law No. 3907/2011 “on the establishment of an Asylum Service and a First Reception Service”, aimed at bringing the detention and living conditions of asylum seekers and the asylum procedure into conformity with the Court's conclusions in the present judgment; they further noted the information presented during the meeting by the Greek authorities concerning short-term measures related to the improvement of conditions of detention. The Deputies also invited the Greek authorities to keep the Secretariat regularly informed regarding any developments in the implementation of their action plan. On 25/01/2012, on 26/03/2012 and on 02/05/2012, the Greek authorities provided additional information. At their 1144th meeting, the Deputies:

- noted with satisfaction the inauguration of the Initial Reception Service as well as the efforts made towards the establishment of the First Reception Centres aimed at remedying the shortcomings in the field of conditions of detention and invited the Greek authorities to intensify their efforts with a view to an effective functioning of those centres;

- welcomed the efforts aimed at improving detention conditions in particular in the Evros region and urged the Greek authorities to intensify those efforts and to pay particular attention in that respect to the recommendations made by national and international actors active in the field;

- noted with satisfaction the progress made under the new legislative framework on asylum in particular regarding the inauguration of the Asylum Department, the increased participation of the UNHCR in the procedures and the re-establishment of the appeal committees, as well as the progress made by the latter during the transitional phase, and invited the Greek authorities to intensify their efforts aiming at restoring full access to the asylum procedure;

- took note of the information provided in the meeting by the Greek authorities and of their intention to provide information on the issues that are still outstanding as identified in the summary of the assessment presented in the memorandum CM/Inf/DH(2012)19, and decided to resume consideration of all the questions mentioned above at the latest at their March 2013 meeting.

Regarding the conditions of detention, it is recalled that similar issues as those in question in the M.S.S. judgment were raised in other cases (S.D. Tabesh, A.A., Kaja, Efremidge concerning conditions of detention in detention centres for foreigners; additional issues were raised more recently in the Rahimi and R.U. judgments; the first concerning a foreign unaccompanied minor); these are examined within the framework of the M.S.S. case. On the other hand, the measures taken with respect to the violations of Article 5 found in those cases are examined separately (group S.D.).

Concerning Belgium:

Having regard to the fact that Belgium stopped transferring asylum seekers to Greece and with regard, in general, to the measures adopted concerning the application of the sovereignty clause of the “Dublin II” Regulation, the Deputies decided at the 1144th meeting to close the examination of the general measures following the violations of Article 3 found against Belgium.

At the 1144th meeting (June 2012), the Deputies also noted the information regarding the recent case-law of the Aliens’ Appeals Board (CCE) provided by the Belgian authorities in response to the violation of Article 13 and instructed the Secretariat to provide an assessment for their 1150th meeting (September 2012) (DH). Examples of case-law provided by the Belgian authorities (in French) are presented in document DH-DD(2012)553 (with appendices in Dutch).

Application

Case

Judgment of

Final on

30696/09

M.S.S.

21/01/2011

Grand Chamber

Decisions

The Deputies

1. recalled that, at their 1144th meeting (June 2012) (DH), they had instructed the Secretariat to provide an assessment of the information regarding the recent case-law of the Aliens’ Appeals Board (CCE) provided by the Belgian authorities in response to the violation of Article 13;

2. endorsed the evaluation presented, following this request, in memorandum CM/Inf/DH(2012)26 and decided to declassify it;

3. took note of the positive developments observed in the recent CCE case-law concerning the remedy for a stay of execution under the extremely urgent procedure;

4. invited the Belgian authorities to provide the Committee with the announced action plan, while ensuring that clarifications are provided on the outstanding questions identified in the memorandum;

5. decided to resume consideration of the question mentioned above at the latest at their March 2013 meeting, in the light of the information provided and of additional information to be provided.

BOSNIA AND HERZEGOVINA

Application: 3727/08

Judgment final on: 09/07/2012

AL HUSIN v. Bosnia and Herzegovina

Enhanced procedure: urgent individual measures

Reference texts:

Action Plan DH-DD(2012)746E

Case description: The case concerns a potential violation of Article 3 of the Convention in the event of the applicant’s deportation to Syria. The case also concerns a violation of the applicant’s right to liberty and security on account of his detention for certain period of time on security grounds before a deportation order had been issued against him (violation of Article 5§1). The applicant is a Syrian national and, as a foreign mujahedin who participated in the war in Bosnia and Herzegovina, was perceived as a threat to national security.

Status of execution: Individual measures: At the time when the Court rendered its judgment in this case, the applicant was detained with the intention of his deportation to Syria on the basis of a deportation order dated 01/02/2011 (§32 of the judgment). As indicated by the European Court, the applicant’s deportation to Syria would violate Article 3 in the present circumstances prevailing in that country (§54 of the judgment).

In their action plan dated 24/08/2012, the authorities of Bosnia and Herzegovina indicated that the above-mentioned deportation order was annulled and a new deportation order was issued on 15/03/2012. This new deportation order did not indicate any country to which the applicant could be deported. In their action plan, the authorities gave assurances that the applicant would not be deported to Syria as a consequence of the findings of the Court in this case. It was indicated that the authorities were working on finding a safe third country that would accept the applicant.

General measures: The provision of the 2008 Aliens Act which is at the origin of the violation will be amended so that detention of aliens on security grounds will only be possible after a deportation order is issued. In July 2012, both chambers of the Parliamentary Assembly of Bosnia and Herzegovina adopted these amendments at the first reading.

Application

Case

Judgment of

Final on

3727/08

AL HUSIN

07/02/2012

09/07/2012

1150th Meeting - Notes

The authorities of Bosnia and Herzegovina have indicated that they are working on finding a safe third country that would accept the applicant. It should be noted in this respect that the authorities are expected to take all possible steps to obtain assurances from the authorities of any safe third country that the applicant would not be subjected to treatment contrary to Article 3 and would not be arbitrarily repatriated to Syria (see, the Grand Chamber judgment in the case of Hirsi Jamaa of 23/02/2012, §211).

The authorities are therefore expected to provide the Committee of Ministers with information regarding the steps taken to find a safe third country and on the assurances obtained from that country in accordance with the above-mentioned case-law of the European Court.

Decision

The Deputies

1. noted that the Court found a potential violation of Article 3 of the Convention in the event of the applicant’s deportation to Syria;

2. welcomed the fact that the authorities of Bosnia and Herzegovina have rapidly given assurances that the applicant would not be deported to Syria;

3. invited the authorities to keep the Committee regularly informed on the developments concerning the identification of a safe third country for the possible deportation of applicant, including on the assurances obtained from the third country against his repatriation to Syria;

4. noted that the Parliamentary Assembly of Bosnia and Herzegovina adopted at the first reading legislative amendments in order to ensure that detention of aliens on security grounds will only be possible after a deportation order is issued;

5. invited the authorities to provide more detailed information on the content of these new legislative amendments.

BOSNIA AND HERZEGOVINA

Application: 27996/06

Judgment final on: 22/12/2009

SEJDIC AND FINCI v. Bosnia and Herzegovina

Enhanced procedure : complex problem

Reference texts:

Interim Resolution CM/ResDH(2011)291

Information document CM/Inf/DH(2011)6

Action plan, see DH-DD(2010)108E

Updated Action Plan DH-DD(2011)403 and DH-DD(2012)64E

Revised Action Plan: DH-DD(2011)915

Updated Action Plan DH-DD(2012)774

Submission under Rule 9.2 DH-DD(2010)307E

Communication from Human Rights Watch and reply of the government DH-DD(2011)1065

Resolution 1855(2012) of the Parliamentary Assembly

Declaration of the Chairman of the Committee of Ministers

Joint statement by Commissioner Füle and Secretary General Jagland on Bosnia and Herzegovina DC088(2012) (04/09/2012)

Decision adopted at the 1137th meeting (14 March 2012)

Decision adopted at the 1147th meeting (4 and 6 July 2012)

Case description: Violation of the right to free elections and discrimination against the applicants (citizens of Bosnia and Herzegovina of Roma and Jewish origin) who were ineligible to stand for election to the House of Peoples of Bosnia and Herzegovina due to their lack of affiliation with a constituent people (Bosniacs, Croats or Serbs) (violation of Article 14 taken in conjunction with Article 3 of Protocol No. 1). General discrimination against the applicants due to their ineligibility to stand for election to the Presidency of Bosnia and Herzegovina due to their lack of affiliation with a constituent people (violation of Article 1 of Protocol No. 12).

Status of execution: Despite the Committee of Minister’s repeated calls on the authorities and political leaders of Bosnia and Herzegovina, political stakeholders have failed to reach a consensus so far on the constitutional and legislative changes required to execute this judgment (see, in particular, Interim Resolution CM/ResDH(2011)291 adopted at the 1128th meeting (December 2011)). The Joint Interim Commission was set up to present proposals for the constitutional and legislative amendments but failed at three occasions to make tangible progress in its work within the deadlines set.

At its 1147th regular meeting (4 July 2012) the Committee of Ministers noted that the representatives of the executive authorities and main political parties from Bosnia and Herzegovina had reached an agreement on 27 June 2012 to amend the Constitution by 30 November 2012 and, to this end, to present draft constitutional amendments to the Parliamentary Assembly of Bosnia and Herzegovina by 31 August 2012. The Committee of Ministers also encouraged the authorities of the respondent State to submit these draft constitutional amendments to the Council of Europe in good time before their submission to the Parliamentary Assembly of Bosnia and Herzegovina for prior assessment of their compliance with the requirements of this judgment.

On 5 September 2012, the authorities of Bosnia and Herzegovina informed the Committee of Ministers that the political parties have not reached the consensus that is needed to present constitutional amendments. However, ten Members of the Parliamentary Assembly of Bosnia and Herzegovina belonging to five political parties have tabled three disparate proposals for constitutional amendments between 29 and 31 August 2012.

Application

Case

Judgment of

Final on

27996/06

SEJDIĆ AND FINCI

22/12/2009

Grand Chamber

1150th meeting - Notes:

On 4 September 2012, Commissioner for Enlargement and European Neighbourhood Policy Štefan Füle and Secretary General of the Council of Europe Thorbjørn Jagland issued a joint statement on the Road Map for Bosnia and Herzegovina's EU membership application and the execution of the European Court of Human Rights’ "Sejdić and Finci" judgment. It was noted in particular in this statement that “the European Union and the Council of Europe call on the leaders of Bosnia and Herzegovina to uphold their responsibilities and work together to implement the judgment of the European Court of Human Rights (ECHR) in Strasbourg, fulfil the country's commitments to the Council of Europe and move the EU integration agenda forward”.

Decisions

The Deputies

1. recalled the commitment of the representatives of the executive authorities and main political parties of Bosnia and Herzegovina which was conveyed to the Committee of Ministers at the 1147th meeting (July 2012) to amend the Constitution by 30 November 2012 and, to this end, to present draft constitutional amendments to the Parliamentary Assembly of Bosnia and Herzegovina by 31 August 2012;

2. noted with deep regret that, despite their commitment, the executive authorities and political leaders have, once again, failed to reach a consensus and to present draft constitutional amendments to the Parliamentary Assembly of Bosnia and Herzegovina by 31 August 2012;

3. reiterated their call on them to reach a consensus and to amend the Constitution by 30 November 2012 at the latest;

4. reiterated also their appeal to the authorities of Bosnia and Herzegovina to submit, once a consensus has been reached, the draft constitutional amendments to the Council of Europe in good time before their submission to the Parliamentary Assembly of Bosnia and Herzegovina for prior assessment of their compliance with the requirements of the Sejdić and Finci judgment;

5. instructed the Secretariat to prepare a second interim resolution for their consideration at their 1157th meeting (December 2012) (DH) in case the Constitution is not amended by the above-mentioned deadline.

BOSNIA AND HERZEGOVINA

Application: 1218/07+

Judgment final on: 28/06/2010

ČOLIĆ AND OTHERS GROUP v. Bosnia and Herzegovina

Enhanced procedure:

Complex problem

Reference texts:

For Republika Srpska action plan, see DH-DD(2011)56

For Federation of Bosnia and Herzegovina action plan, see DH-DD(2011)117

For updated action plans, see DH-DD(2011)359E, DH-DD(2012)199E and DH-DD(2012)777

Decision adopted at the 1100th meeting

Case description: These cases concern a violation of the applicants’ right to a fair trial on account of non-enforcement of final domestic court decisions ordering payment of certain sums in respect of war damages (violations of Article 6§1, Article 1 of Protocol No. 1).

In the Čolić case, the European Court stressed that the violation found affected many people and noted that there were already more than one hundred similar applications pending before it. The Court therefore held that Bosnia and Herzegovina must take measures in respect of other persons in the applicants’ position, in particular by solving the problems that have led to the Court’s findings.

As regards the similar applications lodged with the Court before the delivery of the Čolić judgment, the Court considered that Bosnia and Herzegovina must grant adequate and sufficient redress to all applicants through ad hoc solutions such as reaching friendly settlements with the applicants or making unilateral remedial offers in line with the Convention requirements (i.e. ensuring full enforcement of domestic court decisions and awarding just satisfaction on account of non-pecuniary damage sustained).

Status of execution:

Individual measures: In the Čolić case, the authorities secured the enforcement of all domestic court decisions in question and paid the just satisfaction in respect of non-pecuniary damages.

In the Runić case, the Court did not award any damages because the applicants in this case had not submitted a claim for just satisfaction in respect of the delayed enforcement of the impugned judgments (the Court considered the domestic court decisions in this case enforced because the applicants had accepted government bonds for settlement in lieu of cash).

General measures: Given the different scale of the problem in the two entities of Bosnia and Herzegovina, the authorities of Republika Srpska (“RS”) and the Federation of Bosnia and Herzegovina (“Federation”) drew up two action plans setting out the measures to be taken. The authorities in both entities have also taken steps in order to identify the number of unenforced decisions and the aggregate debt that should be paid.

In the Federation, the authorities noted that most of the decisions which ordered the payment of war-related damages have already been enforced. They indicated that the remaining 31 unenforced decisions will be settled until the end of 2012. On 14 July 2011, the Federation Parliament adopted legislative amendments and set up a mechanism for the payment of these debts in cash. In addition, the Federation Government adopted a special decision concerning the settlement of court decisions in war-related claims. According to this decision, the Federation Ministry of Finance will settle the outstanding claims in chronological order.

In RS, however, the authorities have so far identified considerably higher number of unenforced decisions (10 257 decisions were registered with the Ministry of Finance as of 1 August 2012 ordering the payment of 196 million Euro). More than half of these decisions have been settled either fully or partially by issuing government bonds (6 334 decisions as of 1 August 2012 (the total amount of payment equalled to 97 million Euro)). It appears, however, that all decisions ordering the payment of war damages have not been registered yet. The RS Ministry of Finance will therefore continue the registration procedure. The RS authorities will also prepare a cash payment scheme until the end of September 2012 in order to enforce the remaining decisions. The cash payment scheme will be available to those creditors who are unwilling to accept the settlement of their claims through the government bonds scheme.

In addition, the RS Ministry of Finance has identified 3,030 pending court proceedings in respect of war damages ordering the payment of 333 million Euro.

As far as the settlement of similar applications pending before the Court is concerned, it is noted that the authorities have reached friendly settlements in 121 applications. It appears however that there are still around 100 applications pending before the European Court. These applications have been lodged after the European Court rendered its judgment in the Čolić case.

Application

Case

Judgment of

Final on

1218/07+

ČOLIĆ AND OTHERS

10/11/2009

28/06/2010

28735/06

RUNIĆ AND OTHERS

15/11/2011

04/06/2012

1150th meeting - Notes

Settlement of claims in both entities and the Government bond scheme in RS: It appears from the information provided in the action plans that the necessary measures have been taken in the Federation to enforce the remaining 31 decisions until the end of 2012. In RS, however, the authorities are working on a payment scheme in order to ensure that the remaining decisions are enforced. Information is awaited on the full enforcement of decisions in both entities, in particular on the payment scheme that the authorities in RS are planning to introduce.

Since a large number of civil claims related to war damages were brought before domestic courts, the RS authorities introduced, on 29 November 2005, a general compensation scheme and issued government bonds. The European Court considered in the case of Runić that the settlement of claims by government bonds constituted proper enforcement of court decisions awarding compensation for war damages.

Identification of the exact number of unenforced decisions and the aggregate debt that these decisions relate to: It appears that, although the exact number of unenforced decisions in the Federation has been identified, the question still remains open as to the exact number of unenforced decisions and the aggregate debt that these decisions relate to, in RS. Information is therefore awaited on the progress achieved in the identification process.

Payment of compensation on account of non-pecuniary damages: The authorities are expected to take measures to ensure that compensation is paid in respect of non-pecuniary damages on account of State’s failure to fully enforce final domestic decisions. Information is awaited on the measures taken or envisaged in this respect.

Human Rights Trust Fund Project: Bosnia and Herzegovina was a beneficiary country of the project “Removing the obstacles to the enforcement of domestic court judgments/Ensuring an effective implementation of domestic court judgments” implemented with the financial support of the Human Rights Trust Fund. Four technical support missions to Sarajevo in 2011 and in 2012 were carried out within the context of this project. The authorities have indicated on several occasions that they benefited from the technical support, in particular in the process of drafting the action plans.

Decisions

The Deputies

1. noted that the European Court held in the case of Čolić that Bosnia and Herzegovina must take measures with a view to solving the problems related to non-enforcement of domestic court decisions in respect of war damages;

2. noted further that, since the judgment in the case of Čolić became final, the authorities in both entities of Bosnia and Herzegovina have taken measures in order to identify and to register all unenforced decisions and to calculate the aggregate debt that these decisions relate to;

3. strongly encouraged the authorities of Bosnia and Herzegovina to ensure that the process of identification and registration in Republika Srpska as well as the process of full enforcement of all decisions in both entities are brought to an end;

4. invited the authorities of Bosnia and Herzegovina to keep the Committee of Ministers informed on the developments concerning the above-mentioned processes, as well as on the payment scheme that the authorities in Republika Srpska are planning to introduce;

5. stressed that, in order to comply with the judgment of the European Court in the case of Čolić, measures should be taken to ensure that compensation is paid in respect of non-pecuniary damages to those who obtained enforceable court decisions in their favour and invited the authorities to take the necessary measures in this respect;

6. strongly encouraged the authorities to grant adequate and sufficient redress to all applicants in the pending applications before the European Court, in compliance with the findings made in the case of Čolić.

BULGARIE

Application: 37104/97, 45950/99, 48059/06, 37346/05

Judgment final on: 03/07/2003, 08/10/2004, 10/08/2011

KITOV GROUP

DJANGOZOV GROUP DIMITROV AND HAMANOV and

FINGER v. Bulgaria

Enhanced procedure : pilot judgment + structural problem

Reference texts:

Action report of 17/01/2012 for the Kitov group DH-DD(2012)87E

Action report of 17/01/2012 for the Djangozov group DH-DD(2012)86E

Action report of 17/01/2012 in the Svetlozar Petrov group DH-DD(2012)88E

Action report of 17/02/2012 for the Finger case DH-DD(2012)209E

Action report of 17/02/2012 for the case of Dimitrov and Hamanov DH-DD(2012)208E

Revised action report DH-DD(2012)732E

Information on individual measures (17/02/2012) DH-DD(2012)210F

Interim Resolution of 02/12/2010 CM/ResDH(2010)223

Decision adopted at the 1136th meeting

CM/Inf/DH(2012)27

Case description: Excessive length of criminal (Kitov group) and civil proceedings (Djangozov group) and lack of an effective remedy in that regard (violations of Articles 6§1 and 13).

In two pilot judgments - Dimitrov and Hamanov (criminal proceedings) and Finger (civil proceedings) - the Court found that there was a structural problem, confirmed by the fact that about 500 cases concerning civil proceedings and 200 cases concerning criminal proceedings were currently pending before it. The Court indicated that the authorities were to introduce an effective remedy or a combination of remedies complying with the criteria established in its case-law within one year of the pilot judgments' becoming final. This time-limit expired on 10/08/2012.

Several cases in the Kitov group concern different violations related to the applicants' detention between 1993 and 2003 (violations of Article 5§§1, 3, 4 and 5). The general measures concerning these violations are being examined or have been adopted within the framework of other cases or groups of cases.

Status of execution: Individual measures: On 17/02/2012 the government provided information on eight civil and criminal cases where the domestic proceedings were still pending at the time when the judgments of the European Court were adopted (see DH-DD(2012)210). The proceedings in all these cases have now ended, with the exception of the Kavalovi and Kotsev and Ermenkova civil cases. The applicants in some of the cases whose detention was challenged by the European Court have been released.

General measures:

Measures aimed at reducing the length of the civil and criminal proceedings:

In their action reports of 17/01/2012 (DH-DD(2012)86) and 17/02/2012 (DH-DD(2012)209) and in their interim report on the implementation of the pilot judgments (DH-DD(2012)732), the authorities provided information on the recent reforms of the Bulgarian legal system, as well as statistical data concerning the work of the domestic courts.

Measures aimed at the introduction of an effective remedy in view of the implementation of the pilot judgments Dimitrov and Hamanov and Finger

The Bulgarian authorities indicated that on 7 June 2012 a bill amending the Judicial Powers Act was adopted introducing an administrative compensatory remedy for excessive length of proceedings (see translation into English of the relevant provisions (DH-DD(2012)732). In the framework of this remedy claims for compensation in respect of length of proceedings are to be addressed to the Minister of Justice through the Supreme Judicial Council’s Inspectorate. The Minister (or a person authorised by him or her) has to examine the claim within a six-month time-limit. This remedy is accessible only when the judicial proceedings have ended.

In addition, the Bulgarian authorities have informed the Secretariat that a bill amending the State and Municipalities Responsibility for Damages Act has been drafted in order to introduce a judicial remedy for excessive length of criminal and civil proceedings (DH-DD(2012)732). The draft bill has been approved by the government and submitted to the Parliament on 23/07/2012, but has not yet been adopted. The proposed judicial remedy will be available to persons who are parties in pending judicial proceedings, as well as to persons who have been parties in completed judicial proceedings. The persons who have been parties in completed judicial proceedings will be obliged to exhaust the above-mentioned administrative remedy before they can use the judicial remedy.

For more details concerning the functioning of the adopted administrative remedy and the proposed judicial remedy, see the information document CM/Inf/DH(2012)27.

Application

Case

Judgment of

Final on

37104/97

KITOV GROUP (list of the cases)

03/04/2003

03/07/2003

45950/99

DJANGOZOV GROUP (list of the cases)

08/07/2004

08/10/2004

48059/06+

DIMITROV AND HAMANOV

10/05/2011

10/08/2011

37346/05

FINGER

10/05/2011

10/08/2011

1150th meeting - Notes

The new law introducing an administrative remedy seems to take into account the case-law of the European Court as to, inter alia, the criteria according to which the claims will be examined, the promptness of the examination and the existence of specific budgetary provisions. However, this new administrative remedy is accessible only when the judicial proceedings have ended.

The draft bill which provides for the introduction of a judicial remedy rectifies this lacuna by offering a remedy which is also available to persons who are parties in judicial proceedings which are still pending. Moreover, this remedy seems to take into account the main requirements of the case-law of the European Court in the field of compensatory remedies for length of proceedings.

Thus, it seems that if the proposed judicial remedy is adopted without delay, the aggregate of newly introduced remedies would in principle meet the requirements of the European Court’s case-law.

For a detailed presentation of the functioning of the newly adopted administrative remedy and the proposed judicial remedy, as well as the questions which need to be clarified, see information document CM/Inf/DH(2012)27.

Decisions

The Deputies

1. took note with interest of the revised action report submitted by the authorities on 30/07/2012 presenting the introduction of an administrative compensatory remedy in the field of excessive length of proceedings, as well as of a draft bill for the introduction of a judicial compensatory remedy in this field;

2. approved the assessment of the administrative remedy and of the draft judicial remedy contained in information document CM/Inf/DH(2012)27 and invited the Bulgarian authorities to provide clarifications as concerns outstanding questions identified in this information document;

3. invited the Bulgarian authorities to adopt rapidly the proposed judicial remedy and to amend the provision governing the retrospective effect of the administrative remedy in order to take into account the requirements of the Court in this respect;

4. decided to declassify information document CM/Inf/DH(2012)27;

5. decided to resume consideration of these cases, including the question of the measures aimed at reducing the length of the judicial proceedings, during one of their next Human Rights meetings and invited the authorities to provide additional information also on this question.

CROATIA

Application: 16212/08

Judgment final on: 20/04/2011

SKENDZIC AND KRZNARIC GROUP v. Croatia

Enhanced procedure: Complex problem

Reference texts:

Action plan (21/11/2011) DH-DD(2011)1061E

Updated action plan (20/08/2012) DH-DD(2012)735E

Case description: Lack of an adequate, effective and independent investigation into crimes committed during the Croatian Homeland War (1991-1995) (violations of Article 2 in procedural limb).

In both cases the investigations were found inadequate and ineffective by the Court because of inexplicable delays and the absence of serious efforts to establish the identity of the perpetrators of these crimes. In addition, the investigation in the case of Skendžić and Krznarić was not independent because it was entrusted to the same police station where the police officers arrested the applicants’ close relative who later went missing. The investigations in both cases were still ongoing when the Court delivered these judgments.

Status of execution: Individual measures: In their action plan dated 15 November 2011, the Croatian authorities indicated that, following the Court’s judgment in the case of Skendžić and Krznarić, the investigation case-file was transferred to the office of another state attorney in March 2011 in order to ensure the independence of the investigation. The authorities also indicated that the investigation in this case would be dealt with as a matter of top priority (see below).

In their updated action plan dated 20 August 2012, the Croatian authorities indicated that several investigatory steps have now been taken in both cases in order to remedy the shortcomings found by the Court (e.g. statements were now taken from various individuals in order to identify the persons involved in these war crimes; a confrontation of witnesses was carried out in the case of Skendžić and Krznarić; the relevant information was obtained from the national intelligence agencies in the case of Jularić etc.).

General measures: The Croatian authorities recalled in their above-mentioned action plans that they have taken a series of general measures addressing the issues raised by these judgments and reiterated their strong commitment to resolving all open war crime cases, including those of the applicants.

In February 2011, the authorities thus adopted a strategy for investigation and prosecution of war crimes committed between 1991 and 1995. This strategy includes measures to improve co-operation between the authorities involved and identify priority cases. In line with this strategy, the Ministry of Interior and the State Attorney General adopted operational programmes in February and March 2011 respectively. A mechanism was in particular set up to monitor developments in investigation and prosecution of war crimes. So far, monitoring reports have been submitted in respect of 6 national priority cases and 14 regional priority cases. In this context, the special legislation for the prosecution of war crimes was also amended in 2011. Four specialised court chambers are now competent for war crime cases. Investigations are carried out by war crimes investigative judges and special investigative teams are established within the police. The State Attorney General has appointed a deputy in charge of prosecuting war crimes cases. A policy paper adopted by the Government in 2011 stressed that investigation and prosecution into war crimes should be carried out regardless of the ethnic background of perpetrators and victims.

Moreover, the new Criminal Procedure Code, in force in part in 2009 and fully in 2011, contains a number of provisions aimed at making investigations more prompt and efficient. Measures include transferring investigation powers from courts to public prosecutors. However, in July 2012, the Constitutional Court set aside certain provisions of the Code. The impact of this decision is currently being examined.

The efforts are supported by a special war crimes database, fully operational since 2010. It contains data on all war crimes which took place in Croatia as well as on war crimes perpetrated against Croatian nationals abroad. Access to this database is granted to all relevant authorities, such as county state attorneys, Ministry of Interior, intelligence agencies etc.

As regards the practical effect of the measures taken, the Croatian authorities have indicated in the 2011 action plan that between 2005-2011 the State Attorney General reassigned 23 war crimes related case files in order to ensure the independence of the investigations. In the updated action plan of 2012, the authorities indicated in particular that between 1990 and 2011 criminal complaints have been lodged in respect of 1774 crimes perpetrated during the wartime.

SKENDZIC AND KRZNARIC GROUP

 

Application

Case

Judgment of

Final on

16212/08

SKENDZIC AND KRZNARIC

20/01/2011

20/04/2011

20106/06

JULARIC

20/01/2011

20/04/2011

1150th meeting - Notes

Individual measures: Although the investigation in the Skendžić and Krznarić case was transferred in March 2011 to the office of the State Attorney in another county, certain questions still appear outstanding concerning the practical effectiveness of such measures. Moreover, there is no indication that any of the investigations has so far been brought to a final conclusion. Considering the requirement of promptness highlighted by the Court, the importance of continued information about the progress made in the investigations is underlined.

General measures: The Croatian authorities have indicated that they will continue to keep the Committee informed on all new developments regarding the execution of these judgments. In view of the special circumstances in which the violations at issue took place, it appears in particular that additional information would be helpful to allow a fuller assessment of the efficiency and impact of the measures taken so far. Such information would in particular appear of interest as regards the requirements of independence, expedition, promptness and public scrutiny. Further information would also be useful as regards the special institutional arrangements for the prosecution of war crimes (e.g. composition and terms of reference of the new investigative units, any special competences attributed to state attorneys and judges in charge of prosecuting war crimes). Further statistical data would also be valuable, such as the number of pending war crimes investigations, the number of convictions and the estimated number of un-investigated and un-prosecuted war crimes etc.

As regards the Court’s criticism of the public scrutiny of the investigations, information would be helpful as to how efficient scrutiny (including the involvement of victim’s next of kin, access to documents etc.) is ensured.

Decisions

The Deputies

1. as regards the individual measures, noted with interest the steps taken by the Croatian authorities in response to these judgments, in particular with a view to ensuring the independence of the investigation in the case of Skendžić and Krznarić;

2. strongly encouraged the authorities to ensure that the on-going criminal investigations are concluded rapidly and invited them to continue providing regular information on their progress;

3. as regards general measures, took note with interest of the various reforms adopted with a view to ensuring effective investigations into war crimes committed during the Croatian Homeland War and the authorities strong commitment to resolve all open war crime cases;

4. invited in this respect the authorities to provide further information on the experience gained in the implementation of the measures adopted, in particular as regards the requirements of independence, expedition, promptness and public scrutiny as well as on the special institutional arrangements put in place, and also more detailed statistics regarding the prosecution and convictions for war crimes.

CYPRUS AND THE RUSSIAN FEDERATION

Application: 25965/04

Judgment final on: 10/05/2010

RANTSEV v. Cyprus and Russian Federation

Enhanced procedure : complex problem

Reference texts:

Communication from the Russian Federation (14/09/2010) DH-DD(2010)411E

Updated information from the Russian Federation (06/05/2011) DH-DD(2011)335E

Action plan - Communication from the Russian Federation (18/08/2011) DH-DD(2011)633E

Action plan - Communication from the Russian Federation DH-DD(2012)159E

Communication from the Russian Federation DH-DD(2012)747E

Communication from Cyprus DH-DD(2010)376E

Updated Action plan Communication from Cyprus (05/05/2011) DH-DD(2011)336E

Communication from Cyprus in reply to Mr Rantsev's letter (18/05/2011) DH-DD(2011)357E

Communication from Cyprus Update concerning the individual measures DH-DD(2012)124

Communication from Cyprus (individual measures-update) DH-DD(2012)804E

Communication from the applicant’s lawyer DH-DD(2010)372E

Decision adopted at the 11364th meeting

Decision adopted at the 1144th meeting

Case description: Failure by the Cypriot authorities to conduct an effective investigation into the death of the applicant's daughter in 2001, who travelled from the Russian Federation to Cyprus on an "artiste" visa and died there in ambiguous circumstances (violation of Article 2, procedural aspect); failure by the Cypriot authorities in their positive obligation to set up an appropriate legislative and administrative framework to combat trafficking and exploitation resulting from the “artistes” visa system and police failure to take adequate specific measures to protect the applicant's daughter (violation of Article 4). Failure by the Russian authorities to conduct an effective investigation into the recruitment of the applicant's daughter in Russia (violation of Article 4, procedural aspect). Arbitrary and unlawful detention of the applicant's daughter by the Cypriot police with no basis in domestic law and acquiescence in her subsequent arbitrary and unlawful confinement in a private apartment (violation of Article 5§1).

Status of execution: Individual measures:

Progress of the investigation in Cyprus:

On 5 February 2009 prior to delivery of the European Court's judgment, the Cypriot Council of Ministers appointed an independent committee headed by the President of the Independent Authority for the investigation of allegations and complaints against the police. This committee was charged with investigating Ms Rantseva's death, including the question of whether there was any link between her death and allegations of human trafficking. On 14 November 2011, the investigators passed the investigation file to the Attorney General of Cyprus to take a decision on prosecution. However, the Attorney General referred the file back to the investigators with instructions to take further witness statements. The Attorney General also wrote to Mr Rantsev urging him to visit Cyprus for the purposes of making a statement and also appointed another two investigators to the investigation (see DH-DD(2012)124). During the last debate on individual measures (1136th meeting of March 2012), the Cypriot authorities stated that following these developments, the Attorney General intended to take a decision on prosecution as soon as possible.

On 12/09/12, the Cypriot authorities submitted an update to the Committee of Ministers (see DH-DD(2012)804). In their update they indicate that the investigators submitted their report and investigation file to the Attorney General at the beginning of September 2012. The Attorney General will now decide whether to proceed with a criminal prosecution. The applicant was informed of this and again invited to provide any information that may be useful.

The update also responds to a concern about the search for potential witnesses, raised by the Russian authorities in a recent communication (see below).

Progress of the investigation in the Russian Federation:

The Russian authorities opened a criminal investigation into Ms Rantseva's death and in this framework are also investigating the circumstances of her recruitment in Russia for the purpose of human trafficking. The Russian authorities indicated that their investigation is ongoing but could not be pursued effectively as they had not received a response from the Cypriot authorities in relation to their request for legal assistance (see DH-DD(2011)335E).

On 13 January 2012, the Cypriot authorities confirmed that they replied positively to the request on 12 January 2012 and sent the documents requested by the Russian authorities (see DH-DD(2012)124).

On 24/08/2012, the Russian authorities submitted an update to the Committee of Ministers (see DH-DD(2012)747). In their update, the Russian authorities indicate that they have examined the documents provided by the Cypriot authorities in response to their request for mutual legal assistance. This examination concluded that the documents did not include any information that required further investigation in the Russian Federation. They also revealed that two potential witnesses had not been interviewed. Consequently, the authorities expressed hope that the Cypriot investigators will ensure that an effective investigation is carried out in Cyprus, including the search for all important witnesses.

In the update the authorities also indicate that the part of their investigation concerning Ms Rantseva’s alleged recruitment in Russia has concluded in a procedural decision of a refusal to initiate a criminal case. Another procedural decision was also delivered: to suspend the part of the investigation undertaken by the Russian authorities into Ms Rantseva’s death. This was on the basis of the examination of the documents provided by the Cypriot authorities and that no person subject to prosecution had been identified. According to the update, the applicant was informed of these decisions and the decisions were not appealed with the Prosecutor’s Office, or in the courts.

Communications from the applicant: The applicant has sent a number of communications to the Committee (in Russian). In these communications, he mainly complains that both Cypriot and Russian authorities are still unwilling to enforce the judgment of the European Court, and inter alia that he has not been invited to participate in the investigative activities and that the Cypriot and Russian investigating groups are not co-operating fully (see also links to relevant documents). In his most recent communication, submitted on 18 June 2012, he strongly reiterates his dissatisfaction with the actions of both states.

General measures: the Committee of Ministers decided to close its examination of the general measures concerning both Cyprus and the Russian Federation at the 1144th Meeting (June 2012).

Application

Case

Judgment of

Final on

25965/04

RANTSEV

07/01/2010

10/05/2010

1150th meeting – Notes

The violation found by the European Court concerning Cyprus concerned a failure of the authorities to investigate Ms Rantseva’s death and its possible link to trafficking. The Court stated that “In light of the ambiguous and unexplained circumstances surrounding Ms Rantseva’s death and the allegations of trafficking, ill-treatment and unlawful detention in the period leading up to her death, the Court considers that a procedural obligation did arise in respect of the Cypriot authorities to investigate the circumstances of Ms Rantseva’s death. By necessity, the investigation was required to consider not only the immediate context of Ms Rantseva’s fall from the balcony but also the broader context of Ms Rantseva’s arrival and stay in Cyprus, in order to assess whether there was a link between the allegations of trafficking and Ms Rantseva’s subsequent death” (§234 of the judgment).

Whereas, the violation found by the European Court concerning Russia, related only to the failure of the Russian authorities to investigate Ms Rantseva’s alleged recruitment in Russia and not the circumstances of her death.

The European Court noted that “… the Russian authorities undertook no investigation into how and where Ms Rantseva was recruited. In particular, the authorities took no steps to identify those involved in Ms Rantseva’s recruitment or the methods of recruitment used. The recruitment having occurred on Russian territory, the Russian authorities were best placed to conduct an effective investigation into Ms Rantseva’s recruitment. The failure to do so in the present case was all the more serious in light of Ms Rantseva’s subsequent death and the resulting mystery surrounding the circumstances of her departure from Russia” (§308 of the judgment).

Decisions

The Deputies

1. noted with interest the information recently provided by the Cypriot authorities (see DH-DD(2012)804) indicating that the criminal investigators submitted their report and investigation file to the Attorney General at the beginning of September 2012 and that the Attorney General will now decide whether to proceed with a criminal prosecution;

2. noted that the applicant has been informed of these developments and that the Attorney General again invited him to provide any information that may be useful;

3. expressed hope that the Attorney General will take his decision as soon as possible and invited the Cypriot authorities to keep the Committee informed of the Attorney General’s decision;

4. noted that the investigation carried out by the Russian authorities into Ms Rantseva’s alleged recruitment was concluded by a decision of refusal to initiate a criminal case, and that the applicant was informed of this decision and had the possibility to appeal against it (see DH-DD(2012)747);

5. invited the Russian authorities to indicate whether, in the light of the close link between the Cypriot and Russian investigations, the investigation into Ms Rantseva’s alleged recruitment could be reopened, in the event that the Cypriot investigation reveals any new information.

GREECE

Applications: 54447/10, 71563/01

Judgments final on: 03/07/2012 and 19/08/2005

MICHELIOUDAKIS v. Greece

DIAMANTIDES No. 2 GROUP

(list of cases)

Enhanced procedure:

pilot judgment,

structural problem

Reference texts:

Final Resolution ResDH(2005)66 concerning cases relating to excessive length of criminal proceedings in Greece (case of Tarighi Wageh Dashti against Greece and 7 others

Interim Resolution CM/ResDH(2007)74 on excessively lengthy proceedings in Greek administrative courts

and the lack of an effective domestic remedy

Decision adopted at the 1136th meeting (Manios group including at that time the Diamantides No. 2 group)

Case description: Pilot judgment concerning the violation of the right to a fair trial on account of excessive length of criminal proceedings and the absence of an effective remedy in this respect (violations of Articles 6§1 and 13). The European Court noted that in the period subsequent to the adoption by the Committee of Ministers of Interim Resolution (CM/ResDH(2007)74; see above), which primarily concerned the excessive length of proceedings before administrative courts, it had delivered over 40 judgments finding violations of Article 6§1 in respect of length of proceedings before criminal courts (notably, on account of particularly lengthy proceedings before first instance courts and of fixing very late hearing dates in appeal proceedings, with respect to the lodging date) see Diamantides No. 2 group of cases.

Secondly, the Court noted that, whenever one of the applicants in the related cases made a complaint under Article 13 of the Convention, it concluded that this provision had been violated on the ground that the persons concerned had not been able to benefit from an effective domestic remedy. Lastly, the Court highlighted that the structural nature of the problem identified in the present case was confirmed by the fact that over 250 cases against Greece, completely or partially relating to length of court proceedings, were currently pending before it and that over 50 of those cases exclusively concerned proceedings before criminal courts. The Court therefore concluded that Greece must, within one year from the date on which the present judgment became final (03/07/2013), put in place an effective domestic remedy, or a set of remedies, capable of affording adequate and sufficient redress in those cases in which a reasonable time limit was exceeded in proceedings in criminal courts, and to do so in accordance with the principles of the Convention as established in the case-law of the Court. Pending the adoption of the said remedy, the Court would adjourn the proceedings in all the similar applications pending before it, subject to the Court having the faculty, at any time, to declare inadmissible a case of this type or to strike it out of the list of cases following a friendly settlement between the parties or a settlement of the dispute by other means, in pursuance of Articles 37 and 39 of the Convention.

Status of execution: Individual measures: The domestic proceedings in the Michelioudakis case were completed on 5 March 2010. Information is awaited concerning the proceedings still pending in the Diamantides No. 2 group.

General measures: Action plan awaited.

Application

Case

Judgment of

Final on

54447/10

MICHELIOUDAKIS

03/04/2012

03/07/2012

71563/01

DIAMANTIDES No. 2 (list of cases)

19/05/2005

19/08/2005

1150th meeting - Notes

The Michelioudakis judgment relating to the absence of an effective remedy for excessive length of criminal proceedings is the second pilot judgment concerning Greece. The first pilot judgment (Vassilios Athanasiou and others against Greece; No. 50973/08) concerned the question of an effective remedy for excessive length of proceedings in administrative courts and the Council of State. At its 1136th meeting (March 2012), the Committee welcomed the adoption on 06/03/2012, by the Greek Parliament, of the law introducing a compensatory remedy before the expiry of the deadline set by the Court (21/03/2012).

The Committee of Ministers, in 2005, closed its examination of 8 cases concerning excessive length of criminal proceedings in Greece on the basis of a series of measures envisaged under Laws Nos. 3160/2003 and 3346/2005 (Final Resolution ResDH(2005)66).

On 6 June 2007, the Committee of Ministers adopted an Interim Resolution (CM/ResDH(2007)74) relating mainly to excessive length of proceedings in Greek administrative courts, but at the same time concerning court proceedings in general. Referring to the aforementioned Interim Resolution, the Court noted, in the present judgment, that while the problem of excessive length was quite particularly sensitive in respect of administrative proceedings, it was nonetheless the case that the problem of excessive length of court proceedings in Greece did also relate to proceedings before criminal courts (§§ 65-66).

The European Court noted that, following the legislative initiatives in 2003 and 2005, measures with a view to securing more rational organisation and management of court cases and to limiting adjournments and speeding up preliminary investigations and public action have been implemented. Furthermore, the Court noted with satisfaction the adoption of Law No. 3904/2010, containing a set of provisions intended to simplify and accelerate criminal proceedings. However, notwithstanding the various legislative initiatives which showed that the competent authorities were not indifferent to the acute problem of excessive length of court proceedings, the domestic legal system had not to date adopted a remedy or remedies enabling the parties concerned to enforce their right to have their cases heard within a reasonable time in criminal cases (§67 of the judgment).

Decisions

The Deputies

1. noted that the European Court, in the pilot judgment in the case of Michelioudakis, found a structural problem concerning excessive length of criminal proceedings and invited Greece, within one year from the date on which this judgment became final (i.e. by 03/07/2013), to introduce an effective domestic remedy, or a set of remedies, capable of affording adequate and sufficient redress in the event of the exceeding of the reasonable time requirement and that, during that same period, the proceedings in all the similar applications would be adjourned;

2. underlined the importance of compliance in due course with the pilot judgment and invited the Greek authorities to introduce an effective domestic remedy, or a set of remedies, in accordance with the principles of the Convention as established in the case-law of the Court, taking into consideration the indications given by the Court in the Michelioudakis pilot judgment and also covering the cases relating to the length of criminal proceedings currently pending before the Court (§78);

3. while waiting for the submission of their action plan setting out the individual and general measures taken and envisaged with a view to the execution of this pilot judgment (deadline 03/07/2013) and of the judgments in the Diamantides No. 2 group, invited the Greek authorities to keep the Committee of Ministers regularly informed of the relevant developments.

ITALY

Application: 27765/09

Judgment final on: 23/02/2012

HIRSI JAMAA AND OTHERS v. Italy

Enhanced procedure: Urgent individual measures + complex problem

Reference texts:

Communication from a NGO DH-DD(2012)727E

Communication from the government of Italy DH-DD(2012)544F

Communication of the applicants’ lawyers DH-DD(2012)668

Communication of the applicants’ lawyers DH-DD(2012)845E

Action plan received on 06/07/2012 DH-DD(2012)671F

Communication from a NGO (Amnesty International) and reply by the government DH-DD(2012)744 + appendix DH-DD(2012)744add

Communication from the UNHCR (DH-DD(2012)811)

Reply from the government DH-DD(2012)856

Decision adopted at the 1144th meeting

Case description: In 2009, 11 Somalian and 13 Eritrean nationals were intercepted at sea and transferred to Libya by the Italian military authorities, despite the fact that the latter knew or should have known that, as irregular migrants, they ran a real risk of being exposed in Libya to treatment in breach of the Convention (detention in inhuman conditions, torture, poor hygiene conditions, lack of appropriate medical care) and they would not be given any kind of protection in that country (first violation of Article 3), and that there were insufficient guarantees protecting them from the risk of being arbitrarily returned to their countries of origin, having regard in particular to the lack of any asylum procedure and the impossibility of making the Libyan authorities recognise the refugee status granted by the UNHCR (second violation of Article 3). The removal to Libya was of a collective nature, as it was carried out without any form of examination of each applicant's individual situation (violation of Article 4 of Protocol No. 4). Finally, the applicants could not lodge their complaints with a competent authority nor obtain a thorough and rigorous assessment of their request before the removal measure was enforced (violation of Article 13 taken together with Article 3 of the Convention and Article 4 of Protocol No. 4).

Status of execution: An action plan was provided on 6 July 2012.

Individual measures: Under Article 46, the Court considered “that the Italian Government must take all possible steps to obtain assurances from the Libyan authorities that the applicants will not be subjected to treatment incompatible with Article 3 of the Convention or arbitrarily repatriated” (§ 211).

In the summary table following the operative part of the judgment, the Court indicated the situation of each applicant at the time when it issued its judgment. In particular it appears that: 2 applicants have died; 5 obtained refugee status and reside outside Libya (Switzerland, Italy, Benin and Malta); 1 is held at Chucha detention camp in Tunisia; for 12 applicants it is not known where they are (9 of them obtained refugee status by the UNHCR); 4 are resident in Libya.

In their action plan, the Italian authorities reiterate the information provided for the 1144th meeting (June 2012) about the contacts immediately taken with the Libyan authorities with a view to obtaining the assurances required by the Court’s judgment (DH-DD(2012)544). The action plan adds that the Italian ambassador in Tripoli was asked to strengthen the contacts with the Libyan authorities in light of the urgent nature of the individual measures.

In a communication of 16 July 2012 (DH-DD(2012)668), the applicants’ lawyers complain in particular about the lack of payment of just satisfaction and they mention a certain number of issues related to individual measures.

The issues raised by the applicant’s lawyers concerning payment of just satisfaction are currently dealt with in the framework of consultations between the Italian authorities and the Secretariat.

General measures: It emerges from the judgment that the operation to intercept the vessels on the high seas and to push the migrants back to Libya was the consequence of the entry into force on 4 February 2009 of bilateral agreements concluded between Italy and Libya. However, according to a statement by the Italian Minister of Defence on 26 February 2011, the agreements between Italy and Libya were suspended following the conflict in 2011.

According to the action plan provided, the suspension of the agreements between Libya and Italy remains in force. The Government indicates that the stabilisation of the political situation in Libya is awaited in order to negotiate bilateral agreements (in particular the results of the election of the Constituent Assembly of 7 July are awaited).

The action plan makes also reference to a statement made during a seminar at the occasion of the Refugees World Day (20 June 2012) by the Minister of International Cooperation, according to which collective expulsions following interceptions at sea are not part of the Italian policy.

Already at this juncture a procès verbal was signed on 3 April 2012 between the Italian Minister of Internal Affairs (Ms. Cancellieri) and her Libyan homologue, providing the basis for a new co-operation between the two countries in compliance with human rights requirements, notably as regards the organisation of reception centres in Libya. It is, nevertheless, underlined that the said “procès verbal” is not a new international treaty and does not imply the resumption of the 2009 collective removal policy.

In the light of the present situation, the Italian government underlines that there is no risk that the violations found by the Court in its judgment Hirsi will be repeated, as persons possibly intercepted at sea are at present taken to specific centres in Italy in order to assess their individual situation in compliance with all guarantees required by the Convention.

An Italian NGO “Unione forense per la tutela dei diritti umani” made some comments on the general measures, in particular on the scope of the “procès verbal” of 3 April 2012, in a communication of 26 July 2012 (see DH-DD(2012)727).

Amnesty International has also presented a communication on 16 August 2012. The Government’s observations (rule 9) were received on the date of issuing of this Order of Business. Both texts are available over the Internet (DH-DD(2012)744).

The UNHCR has also presented a communication dated 5 September 2012 relating to the execution of this case (see DH-DD(2012)811). The Italian Government has indicated its intention to submit to the Committee of Ministers a reply with respect to the different issues dealt with in this communication.

Application

Case

Judgment of

Final on

27765/09

HIRSI JAMAA AND OTHERS

23/02/2012

Grand Chamber

Decisions

The Deputies

1. recalled that in this case, the Court found several violations of the Convention because of the collective removal of the applicants following their interception at sea in May 2009 and their transfer by Italian military ships to Libya, notwithstanding the fact that they ran a real risk there of being exposed to ill-treatment and of being arbitrarily returned to their countries of origin, as well as to the lack of a remedy at their disposal on board the ships;

2. took note of the new information received, in particular the action plan submitted by the Italian authorities on 6 July 2012 and the additional information provided at the meeting, the submission of the UNHCR, as well as the communications from the applicants’ lawyers and a number of NGOs;

3. noted, as regards individual measures, the continuous efforts of the Italian authorities in view of obtaining the information and assurances required by the Court’s judgment; strongly encouraged them to pursue their efforts in this respect, in particular considering the communication transmitted by the applicants’ lawyers on the fate of certain applicants, and to keep the Committee informed of all developments;

4. noted the problems raised relating to the payment of the just satisfaction and encouraged the Italian authorities, in close contact with the Secretariat, to find rapidly a solution in accordance with the Court’s judgment;

5. noted, as regards general measures, the information provided by the Italian authorities according to which the bilateral agreements concluded with Libya remain suspended and there is presently no risk that the violations found by the Court in its judgment will occur again, as the persons possibly intercepted at sea are now sent to specific centres in Italy where they enjoy the guarantees of the Convention;

6. noted further with satisfaction the declaration that collective removals following interceptions at sea will no longer take place and that the procès verbal of 3 April 2012 does not imply the resumption of the 2009 collective removal policy to Libya;

7. invited the Italian authorities to provide more precise information on the practical consequences of the new policy announced and how it has been - or it will be - translated into relevant normative texts (legislation, instructions to competent authorities, treaties, agreements etc…) taking into account the European Court’s conclusions in the Hirsi Jamaa judgment, including as regards the effectiveness of domestic remedies;

8. invited, in this context, the Italian authorities to provide further clarifications on the status of the agreements at the origin of the practice criticised by the Court and on the content of the procès verbal of 3 April 2012;

9. decided to resume consideration of these issues at their 1157th meeting (December 2012) (DH), in the light of the new information submitted and the clarifications requested.

ITALY

Application: 22635/03

Judgment final on: 06/11/2009

SULEJMANOVIC v. Italy

Enhanced procedure : complex problem

Reference texts:

Communication from the authorities DH-DD(2012)670F

Action plan DH-DD(2011)1113F

Decision adopted at the 1136th meeting

Case description: Inhuman or degrading treatment suffered by the applicant on account of the conditions of his detention in Rebibbia prison (Rome), due to the excessively confined space at his disposal in a cell resulting from overcrowding (violation of Article 3).

The Court noted that for more than two and a half months the applicant was obliged to live in a very confined space, much smaller than the minimum surface considered as desirable by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). According to the Court, the evident lack of personal space suffered by the applicant constituted, in itself, an inhuman or degrading treatment (§ 43 of the judgment).

Status of execution: Individual measures: The applicant was released in October 2003 and the European Court awarded him just satisfaction in respect of non-pecuniary damages suffered. Therefore no further individual measure seems necessary.

General measures: On 29/06/2012 the authorities provided an updated action plan, presenting the details of the structural measures taken and planned (so-called “Piano carceri” plan), the domestic remedy available to prisoners as well as certain further measures envisaged. In the action plan it is stated that the fight against prisons’ overcrowding is a priority of the Minister of Justice, Ms. Paola Severino.

Structural measures (“Piano carceri” plan): The plan, which is already being implemented, foresees construction of 21 new facilities (16 new blocks with capacity for 200 or 400 prisoners each and 5 new prisons) and allocates a budget of over 400 million Euros for this purpose. Progressive employment of 2,000 new prison officers is included in the plan. According to the authorities, it is expected that the implementation of the “Piano carceri” plan will lead to “a reduction of the overcrowding of 50%”.

At the same time, the authorities have been taking measures to improve the use of space and services available and working towards ensuring a wider selection of sport and cultural activities for the detainees. According to the requirements of the Ministry of Health, individual space per detainee cannot be lower than 7.5 m2.

New penitentiary policy: In 2009, immediately after the judgment of the European Court, two circular letters were sent to the directors of Italian prisons on steps to be taken to reach compliance with the European Court's standards (the letters referred to reorganisation of unused space in prisons, computer systems for continuous monitoring of the number of detainees in cells, initiatives to implement a wider range of social or working activities in prisons and on management of alternative measures to detention). On 26/11/2010 a new law against overcrowding in prisons was adopted, introducing the possibility of house arrest for sentences of less than a year and for the final part of longer prison sentences. The threshold for the final part of longer prison sentences was raised to 18 months (law of 17 February 2012, No. 9).

A draft law on decriminalisation of petty offences, as well as some further amendments to relevant law are currently being examined by the Parliament.

The authorities submitted that according to the monitoring of overcrowding carried out, the new penitentiary policy already resulted in a reduction of approximately 2.6% of the number of detainees between mid-2010 and mid-2012.

Domestic remedy: On 9/06/2011 the Lecce Court allowed a claim for compensation from the State for detention in an overpopulated prison, in civil proceedings. In the judgment No. 26/1999 the Constitutional Court also recognised the obligation of judges responsible for the execution of sentences to receive complaints against the prison administration. Judges responsible for the execution of sentences can also request further measures to be taken, including that a detainee is moved to a non-overcrowded cell. Given that some inconsistencies in the competence of the relevant authorities arose, a case dealing with a conflict of power is currently pending before the Constitutional Court.

The judgment of the European Court was published on the Internet site of the Court of Cassation, in the database on the case-law of the European Court of Human Rights (www.italgiure.giustizia.it) and on the government's website (www.governo.it/presidenza/contenzioso).

Application

Case

Judgment of

Final on

22635/03

SULEJMANOVIC

16/07/2009

06/11/2009

1150th meeting - Notes

The existence of an important structural problem has been acknowledged by the Italian authorities. The problem is currently being addressed as indicated in the action plan submitted to the Committee of Ministers. The importance of efficient action is underlined by the influx of similar applications to the Court (90 applications have been communicated so far).

The action plan sets out various measures intended to address the issue of prisons’ overcrowding, through increasing the prison capacity and developing alternatives to detention. Further, the action plan makes reference to a number of recent developments as regards the effectiveness of domestic remedies available to prisoners.

Upon examination of the information provided, it appears that a number of clarifications are needed in order for the Committee to have a full picture of the Italian authorities’ efforts.

According to the information submitted, the update of the “Piano carceri” plan foresees the creation of 11573 places, while the expected result foresees only 1323 new places. Clarification would be useful as to the relation between both figures, as well as to the total additional capacity foreseen.

It is also indicated that according to the Ministry of Health, the minimal individual space per detainee should not be lower than 7.50 m2. Clarification as to the meaning of this figure would be useful, in particular on whether it refers to the minimum living space which should be available to a detainee in an individual cell or to the minimum living space per detainee in a collective cell, and on the status of the Ministry of Health standard. In this context, the Committee may also wish to invite the Italian authorities to indicate how the total capacity of the prison establishments is calculated.

Although the efforts made by the Italian authorities in this respect should be noted with interest, it has to be recalled that in its Recommendation R(99)22 on prison overcrowding and prison population inflation, the Committee of Ministers stressed that “…the extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding…” and that “…measures aimed at combating prison overcrowding and reducing the size of prison population need to be embedded in a coherent and rational crime policy directed towards the prevention of crime and criminal behaviour, effective law enforcement, public safety and protection, the individualisation of sanctions and measures and the social reintegration of offenders…”.

In this respect, the fact that the fight against prisons’ overcrowding constitutes a priority for the Minister of Justice should be welcomed, especially as far as the measures related to alternatives to detention, the draft law on decriminalisation of petty offences, the widening of the recourse to probation are concerned. It is also noteworthy that Law of 17 February 2012, no. 9 increased the threshold (from 1 year to 18 months) of the final part of longer prison sentences for application of house arrest. The Committee of Ministers may wish to strongly encourage the Italian authorities to enhance their efforts in this respect, bearing in mind in particular the above-mentioned Recommendation R(99)22. This appears all the more important that figures submitted as to the reduction of prisons’ population show for the time being only a modest decrease.

The Italian authorities could also be invited to provide further information on the monitoring of the prison conditions, including updated statistics on the reduction of prison overcrowding. Moreover, information would be useful on the impact of the various measures adopted so far.

Concerning the question of domestic remedies the Committee of Ministers could note with interest the developments relating to the action of the judges responsible for the execution of sentences which have allowed prisoners to complain about violations of their fundamental rights. In this respect a notable development appears to be a decision by the Court of Cassation issued on the 12 July this year, confirming an order of the judge responsible for the execution of sentences of Lecce of 9 July 2011, awarding compensation to a prisoner owing, in particular, to his detention in an overcrowded cell. Besides information on the developments in practice in general, the Italian authorities could be invited to keep the Committee informed on the outcome of the proceedings currently pending before the Constitutional Court concerning a conflict of competence between the judiciary and the prison administration.

In this context - and in view of the extent of the problem, which is underlined by the important number of applications communicated by the Court to Italy - the Committee of Minister could strongly encourage the Italian authorities to devote all their attention to the existence of an effective domestic remedy in theory and in practice, in conformity with the requirements of the Convention as specified in the case-law of the Court.

Finally, in order to be able to take stock of all measures adopted and still remaining to be envisaged, as well as to analyse their impact on the situation in Italian prisons, the Committee might wish to receive the complementary information and clarifications referred to above.

Decisions

The Deputies

1. noted with interest the updated action plan provided by the Italian authorities on the progress made with respect to the new penitentiary policy and providing details on measures taken and foreseen in response to the Sulejmanovic judgment;

2. welcomed the priority given by the Minister of Justice to the fight against prisons’ overcrowding;

3. noted with interest the efforts made by the Italian authorities in the framework of the "Prison plan" (“Piano carceri” plan) aiming, notably, at increasing the capacity of prison establishments;

4. invited in this respect the Italian authorities to provide clarifications regarding the announced creation of 11573 places and the expected announced result of 1323 new places, as well as further clarifications on the additional total capacity foreseen;

5. also invited the Italian authorities to clarify the meaning and status of the Ministry of Health standard relating to the minimum living space per detainee and to inform the Committee on how the total capacity of the prison establishments is calculated;

6. noted further with interest the measures aimed at encouraging alternatives to detention, the draft law on decriminalisation of petty offences and the widening of the recourse to probation;

7. invited the authorities to provide further information on the monitoring carried out on detention conditions, including up-to-date statistics on the reduction of the prison overcrowding and details on the impact of the different measures adopted so far;

8. strongly encouraged the Italian authorities to redouble their efforts so as to find a lasting solution to the problem of overcrowding taking into account Recommendation (99)22 of the Committee of Ministers concerning prison overcrowding and prison population inflation, and of its other pertinent recommendations in this respect;

9. stressed the importance of the existence, both in theory and practice, of effective domestic remedies;

10. noted in this context with interest the indications given regarding the development of the practice of the judges responsible for the execution of sentences in ensuring respect for the fundamental rights of detainees and the recent decision of the Court of Cassation of 12 July 2012, confirming a decision by the judge responsible for the execution of sentences of Lecce awarding compensation for moral damage to a prisoner owing, in particular, to his detention in an overcrowded cell,

11. invited the authorities to keep the Committee of Ministers informed of the developments of the above-mentioned practice as well as regarding the proceedings currently pending before the Constitutional Court on the conflict of competence between the judiciary and the prison administration.

ROMANIA

Application: 73970/01

Judgment final on: 06/12/2005

SACALEANU GROUP v Romania

Enhanced procedure: complex problem

Reference texts:

Information document CM/Inf/DH(2012)24

Information document CM/Inf/DH(2007)33 Round Table on “Non-enforcement of domestic courts decisions in member states: general measures to comply with European Court judgments”

Action plan (Sacaleanu group) (23/01/2012) DH-DD(2012)63F

Communication of the Romanian authorities of 6 September 2012 (DH-DD(2012)779)

Decision adopted at the 1059th meeting (and notes)

Case description: Failure or significant delay of the Administration or of legal persons under the responsibility of the State in abiding by final domestic court decisions (violations of Article 6§1 and/or Article 1 of Protocol No. 1).

Status of execution: In January 2012, the Romanian authorities provided an action plan for the execution of these judgments (DH-DD(2012)63).

Individual measures: information and clarifications on the individual measures are still awaited in a certain number of cases in this group, in particular as regards the enforcement of the domestic court decisions given in favour or the applicants.

General measures: in general, the action plan indicates that the mechanisms of implementation of court decisions by the State are based on the principle of voluntary compliance. Failing this, it is for the claimant to take the necessary steps to have the decision at issue complied with, in particular through enforcement proceedings. These proceedings are conducted by bailiffs and, in general, they are governed by the same rules as the enforcement proceedings against private persons. Various procedural means are available to the claimant if the bailiffs refuse or delay the performance of acts which fall under their authority.

Different mechanisms are set for the enforcement of pecuniary awards and for the enforcement of decisions ordering the administration to perform a specific act:

- enforcement of pecuniary awards: the law requires from the public authorities to secure that their budgets and those of the entities subordinated to them have sufficient funds to make the payments ordered by enforceable titles. The debts of this kind are paid with funds specifically allocated for their payment or with funds allocated for the payment of the type of expenditures to which such payments correspond. The funds reserved for organization and operation expenses of the debtor authority, including the wage funds, cannot be used for payment. In case of lack of funds, the defendant authority must comply with the decision within 6 months from the date the claimant serves it a notice to pay. It is however possible for the defendant to request before the relevant court to be granted a period of grace and/or a debt rescheduling.

- enforcement of decisions ordering the performance of a specific act: in the administrative field, the general time-limit for implementation of this type of decisions is 30 days as of the date such decisions are no longer subjected to ordinary appeals. If the decision is not voluntarily complied with, the claimant may bring court action in order to have a fine imposed on the defendant authority. Failure or refusal of such authority to comply with the decision after the imposition of a fine is liable to criminal penalties. The creditor can also request the bailiff to initiate enforcement proceedings, which may ultimately lead to the courts imposing a daily coercive fine to the defendant authority. In both cases, the claimant is entitled to compensation for the damage suffered.

The action plan further presents information on the awareness-raising measures taken with regard to the actors involved in the implementation process. They consist of courses for initial and continuing training of the magistrates and bailiffs and of the publication and dissemination of some of the judgments given in this group of cases. Measures with regard to the public servants are envisaged, in particular the possible inclusion of the subject “Protection of human rights” in the national strategy for the continuous training of the public servants.

On 6 September 2012, the Romanian authorities indicated to the Committee that measures were taken in order to raise awareness of the issues raised in the Secretariat’s assessment with the authorities concerned by these cases. Steps were also taken with a view to collecting the information necessary on the outstanding issues regarding the individual and general measures, and transmitting it to the Committee without delay.

SACALEANU GROUP

Application

Case

Judgment of

Final on

73970/01

SACALEANU

06/09/2005

06/12/2005

27444/03

BABEI AND CLUCERESCU

23/06/2009

23/09/2009

37380/03

BALCAN

29/07/2008

29/10/2008

37805/05

COSTĂCHESCU

29/09/2009

24/01/2012

29/12/2009

24/04/2012

36297/02

DARNAI

08/12/2009

10/05/2010

25765/04

DELCA

04/11/2008

06/07/2009

25234/03

DUMBRAVĂ

17/02/2009

17/05/2009

2456/05+

GHIŢOI AND OTHERS

13/10/2009

13/01/2010

35430/03+

GOTCU AND OTHERS

27/09/2011

 

13386/02

MOLDOVEANU

29/07/2008

29/10/2008

67344/01+

MUSTEAŢĂ AND OTHERS

06/10/2009

06/01/2010

49182/06

NISTOR

28/06/2011

 

26004/03

NIŢESCU

24/03/2009

24/06/2009

1486/02

ORHA

12/10/2006

04/11/2008

12/01/2007

24714/03

PAICU

25/11/2008

25/02/2009

5050/02

PÂNTEA ELISABETA

15/06/2006

15/09/2006

34860/02

PIŞTIREANU

30/09/2008

30/12/2008

1690/05

POPA AURELIA

26/01/2010

26/04/2010

19001/05

RJ IMPORT ROGER JAEGER A.G. AND

RJ IMPORT BUCUREŞTI S.A.

03/11/2011

 

67289/01

ŞANDOR

24/03/2005

24/06/2005

16294/03

S.C. BARTOLO PROD COM SRL AND BOTOMEI

21/02/2012

21/05/2012

29268/03

S.C. GHEPARDUL S.R.L.

14/04/2009

14/07/2009

35877/05

S.C. PRODCOMEXIM S.R.L.

27/10/2009

27/01/2010

28333/02

SC RUXANDRA TRADING SRL

12/07/2007

02/12/2008

12/10/2007

02/03/2009

30198/04+

STEFAN ANGELESCU AND OTHERS

28/06/2011

 

40263/05

STRĂCHINARU

21/02/2008

21/05/2008

35676/07

TEODOR AND CONSTANTINESCU

02/03/2010

02/06/2010

1150th meeting - Notes

The information document CM/Inf/DH(2012)24 contains a detailed presentation of this information as well as its assessment. The salient elements of this document can be summarised as follows:

The rules which now apply to the implementation of final court decisions by the administration place on the claimant the burden of securing compliance in cases where the administration refuses to abide by them, by resorting to enforcement or equivalent proceedings. At the stages of such proceedings which are mentioned in the action plan, it appears that it is always for the applicant to take the initiative in order to have the enforcement progress.

In the light of a well-established case-law of the European Court, however, a person who obtained a debt against the State following judicial proceedings cannot be expected to then bring enforcement proceedings to obtain satisfaction. On the contrary, it is primarily for the State authorities to ensure compliance with a judgment against the State.

The information presented does not provide a clear picture of the mechanisms and guarantees available in domestic law, outside the enforcement proceedings framework, for obtaining voluntary and prompt compliance with court decisions by the administration and, in the alternative, of the actual burden imposed on the claimant by the enforcement or equivalent proceedings and of their effectiveness in practice.

As to the remedies available in domestic law in this field, an issue mentioned in the action plan, it should be noted that the existence in domestic law of mechanisms allowing the relevant State authorities to speed up the enforcement proceedings and the effectiveness in practice of such mechanisms require further clarifications, as do the rules applied in the domestic law for compensation of the damage suffered by the claimant.

The authorities’ awareness-raising strategy also leaves some questions unanswered. Given that the primary responsibility for the implementation of decisions against the administration lies with the agents of the defendant authorities, it appears crucial that the authorities grant priority to awareness-raising measures which target public servants.

Other questions raised by some cases in this group, such as the recovery of the debts held by private individuals upon judicial winding up of companies under the responsibility of the State and the proceedings allowing the authorities to seek a finding that the non-compliance rests on an impossibility to implement the decision and to have established an alternative obligation, have not been tackled in the action plan.

As regards the individual measures, the information presented by the authorities and by the applicants in a number of cases is assessed in the information document CM/Inf/DH(2012)24. In most of these cases, further clarifications appear necessary; similarly, the authorities’ assessment on the individual measures in the other cases in this group appears necessary.

In these circumstances, before holding a substantial debate on the status of execution in this group of cases, the Committee might wish to receive the useful additional information. At this stage, the Committee is invited to adopt the decision below.

Decisions

The Deputies

1. noted that the violations found by the Court in these cases reveal the existence, at the time of the relevant facts, of important complex problems related to the non-compliance or delay in the compliance with final court decisions by the Administration or by legal persons under the responsibility of the State;

2. noted with interest the action plan for the execution of these judgments provided on 16 January 2012, which contains information on the measures taken and envisaged by the Romanian authorities with a view to remedying the problems at the origin of these cases;

3. noted however with concern that a number of crucial issues relating to the general measures, as regards in particular the mechanisms and the guarantees set forth in the domestic law for ensuring voluntary and prompt implementation of court decisions by the Administration and the remedies available in this respect, remain to date outstanding;

4. noted also that information and clarifications are still needed in a certain number of cases as regards the individual measures (for more details, see §§55 - 82 of the Memorandum of the Secretariat CM/Inf/DH(2012)24);

5. noted that the Romanian authorities have recently begun collecting the necessary information on these issues and on the other issues raised in the above-mentioned Memorandum; encouraged the authorities to submit to the Committee the results of this exercise without delay;

6. decided to declassify the Memorandum CM/Inf/DH(2012)24 and to resume the examination of all these issues in the light of a revised action plan to be submitted promptly by the Romanian authorities.

RUSSIAN FEDERATION

Application: 4916/07

Judgment final on: 11/04/2011

ALEKSEYEV v. the Russian Federation

Enhanced procedure: complex problem

Reference texts:

Communication from the Russian Federation DH-DD(2011)842

Communication from the Russian Federation DH-DD(2012)754E

Communication from NGOs (30/08/12) DH-DD(2012)790

Communication from a NGO (05/09/12) DH-DD(2012)835

Communication from NGOs (13/09/2012) DH-DD(2012)852

Decision adopted at the 1144th meeting

Case description: Disproportionate interference with the applicant's freedom of assembly due to the repeated bans, over a period of three years (2006, 2007 and 2008), on the holding of gay-rights marches and pickets imposed by Moscow authorities on account of their failure to adequately assess the risk to the safety of the participants and public order and base their decision on an acceptable assessment of relevant facts (violation of Article 11); lack of an effective remedy in this respect on account of the absence of any legally binding time-frame for the authorities to give their final decision before the planned date of the march or the picketing (violation of Article 13 in conjunction with Article 11); discrimination of the applicant and of other participants in the proposed events on the grounds of their sexual orientation since the authorities failed to justify the bans in a way compatible with the Convention requirements (violation of Article 14 in conjunction with Article 11).

The European Court in its judgment also referred to the fact, inter alia, that the gay pride parade organised by the applicant was to call for tolerance towards sexual minorities, and would have not involved any demonstration of obscenity; its participants had not intended to exhibit nudity, engage in sexually provocative behaviour or criticise public morals or religious views.

Status of execution: Individual measures: At the last 1144th meeting (June 2012), the Russian authorities indicated that the applicant’s request for holding a gay pride parade on 28 May 2011 was refused by the competent authorities. Their refusal was subsequently confirmed by the domestic courts on the ground that other public events had already been planned on that day (celebration of the Border Guards’ day). The Russian authorities also indicated that the applicant “avoided making an agreement on an alternative date and time for his public event”.

The Committee noted with concern that since the Court’s judgment, the applicant could not organise Gay Pride marches in Moscow and invited that the authorities to provide concrete and detailed information on the reasons thereof.

According to the Report provided by the Russian authorities on 24/08/2012, in response to this request, from January 2010 until July 2012 the applicant submitted to the Moscow authorities nine notifications for holding “public events aimed at defence of LGBT persons”, including the notification on the organisation of 102 public events over the period of 100 years. In all these cases, the applicant “did not manage to agree the time and the place of the planned events with the competent authorities”. The applicant appealed to the courts which confirmed that the refusals were lawful. For instance, while considering the applicant’s appeal against the Moscow authorities’ refusal to agree on holding a Gay Pride Parade in May 2012, the domestic courts found this refusal to be lawful on the ground that another public event relating to the celebration of the Border Guards Day had already been scheduled for the same day and that in these circumstances, it was impossible for the authorities to ensure the safety of the participants in the applicant’s event. The domestic courts however noted that this refusal did not deprive the organiser of a public event of his constitutional right to freedom of assembly because it was up to him to agree with the competent authorities on another time and/or place of a public event (DH-DD(2012)754).

General measures: According to the Interim Report submitted by the Russian authorities on 11/10/2011 (DH-DD(2011)842), the judgment was disseminated to all relevant judicial authorities, the Moscow City government, and to the Prosecutor general’s office. The report further indicated that the Russian Assemblies Act is in line with international standards and that an effective remedy is available under general provisions of the Code of Civil procedure. Consequently no action plan was required in this case. At the 1144th meeting, the Russian authorities stated that no discrimination on the ground of sexual orientation in the Russian Federation is provided by law. They referred to 2 similar events which have taken place in St Petersburg. Finally, they mentioned 2 examples in which the remedy referred to by the authorities proved to be effective at domestic level.

The Russian authorities were invited to submit this information in writing as well as to submit statistics on how many similar events took place in the Russian Federation, on how many of them were refused and on what grounds. As regards recent regional laws prohibiting propaganda of homosexuality amongst minors, the authorities were invited to clarify how these laws could be compatible with the findings made by the Court in the present judgment. Finally, the authorities were invited to provide further examples demonstrating the effectiveness of the remedy they referred to. Information on all these issues is awaited.

In their August 2012 report, the Russian authorities provided statistics following the Committee’s request as well as examples of judicial practice demonstrating, according to the authorities, the effectiveness of the domestic remedy. As regards the regional laws prohibiting propaganda of homosexuality amongst minors, the Russian authorities indicated that a similar law adopted in 2006 was found to be consistent with the freedom of expression by the Constitutional Court. The Russian authorities also referred to a number of judicial decisions in which the domestic courts found that different picketing organised to defend sexual minorities’ rights did not constitute propaganda prohibited by these laws (DH-DD(2012)754).

Application

Case

Judgment of

Final on

4916/07

ALEKSEYEV

21/10/2010

11/04/2011

1150th meeting – Notes

As regards individual measures

It results from the Report provided by the authorities that since the delivery of the judgment, no Gay Pride parade could be organised in Moscow by the applicant. This situation calls for further clarifications, in particular as regards the competent authorities’ obligation to propose to the organiser another place and/or time for the planned event. Further, the information submitted does not develop any reasons allowing to conclude that the new refusals issued by the Moscow authorities were now based on a thorough and objective assessment of the situation, in contrast to the situation impugned by the Court. In these circumstances, the issue of individual measures appear to be closely linked to the issue of general measures.

As regards general measures

Violations of Articles 11 and 14

The judgment has been disseminated to relevant courts and to the prosecutor general’s office. It has also been transmitted to the Moscow government. There is no indication of further transmission to other governments of subjects of the Federation or local authorities responsible for handling notifications of intentions to organise assemblies.

It results from the general, recent statistics provided by the authorities that there are positive examples demonstrating that since the delivery of the Court’s judgment, public events similar to those planned by the applicant have effectively taken place in different parts of the Russian Federation, including one in Moscow. It would also appear that in a number of situations in which such public events did not take place, other proposals were submitted to the organisers. However, according to the authorities, the latter did not follow up.

The recent examples demonstrate, however, that the practice of dealing with such notifications varies considerably from one region to another. It seems for example that in Moscow the applicant was expected to come up himself with an alternative proposal (see above under individual measures). In Novosibirsk the competent authorities themselves seem to have sent other proposals to the organisers. In St Petersburg the authorities sent to the organisers other proposals including the reasons thereof, as it seems to be required by the Assemblies Act.

The above differences in practice seem to be due notably to the absence of clear and unified procedures, leaving room to the authorities’ discretion and arbitrariness and making it possible to eventually ban a public event.

In these circumstances, it would appear useful to reflect on the possibility to introduce a clearer and more unified procedure which would narrow the authorities’ discretion and allow more efficient judicial review to ensure that any refusal is also based on an objective assessment of the facts (see above under individual measures). Information would also be useful on awareness-raising and training measures for persons competent to decide on applications for holding a public event.

As regards concerns voiced by the Committee with respect to the special laws adopted in certain regions2 prohibiting propaganda of homosexuality among minors, the Russian authorities have stated that these laws are compliant with the Constitution and international law. In this respect, they referred to a number of examples, all concerning picketing. Persons who were picketing in favour of the rights of homosexuals were first arrested by the authorities on the basis of these laws. They were later released by the domestic courts which found that their actions did not constitute propaganda within the meaning of these laws.

Examples to the contrary were, however, provided by an NGO in its submission (DH-DD(2012)790). The NGO referred to similar events where persons were apprehended under these laws but then convicted by the domestic courts for propaganda of homosexuality. The same submission also refers to examples in which the authorities refused Gay Pride marches in particular on the basis of such laws (for example, ban in Kostroma in March 2012).

At the last meeting, it has already been pointed out that these laws could give rise to arbitrary application in view of the vagueness of the term “propaganda”3. The difference in the domestic courts’ case-law seems to confirm this situation.

As regards violation of Article 13

The Russian authorities provided a number of examples of domestic courts’ practice in support of the effectiveness of the judicial remedy at issue in the Court’s judgment (i.e. that is the one provided by Chapter 25 of the Code of Civil procedure). These examples demonstrate that domestic courts have found recent refusals by local authorities unlawful. In two examples the courts ordered immediate enforcement. In one case it is also indicated that the planned event effectively took place as notified (see DH-DD(2012)754). The above NGO submission refers, however, to other examples suggesting the contrary (see DH-DD(2012)790).

Considering the fact that no new time-limits have been introduced by law to guarantee an enforceable judicial decision before the planned event, available information appears to leave room for continued doubts as to the effectiveness of the existing remedy. It is noted in particular that according to the Assemblies Act, the organiser of a public event continues to have the obligation to notify the competent authorities no earlier than fifteen days and no later than ten days before the date of the event. The competent authorities then have another three days to react. In case of complaint, the domestic court has a further ten days to consider the matter. In these circumstances, there appear to be no institutional guarantee that a judicial decision will be adopted in time to serve as an effective remedy.

Decisions

The Deputies

1. took note of the information and statistics provided by the Russian authorities according to which out of the total number of notifications submitted in respect of events similar to those envisaged by the applicant, only a very limited number of such events could effectively take place;

2. noted in this respect that in the vast majority of cases, the competent authorities, in particular in Moscow, refused to agree the time and place for such events, and that the information provided does not allow the Committee to satisfy itself that these decisions were based on a thorough and objective assessment of the situation as required by the Court’s judgment;

3. reiterated in this context their concerns as regards the use of regional laws prohibiting propaganda of homosexuality among minors to refuse events similar to those concerned by the judgment;

4. observed that this situation calls for further general measures, in particular those regarding the training and awareness raising of the authorities responsible for handling the notifications for holding public events, and invited the Russian authorities to submit a comprehensive action plan in this respect;

5. observed further that the domestic remedy referred to by the Russian authorities may not provide adequate redress in all circumstances as required by the Convention and consequently invited the Russian authorities to adopt the necessary measures, through legislative action if need be;

6. decided to resume consideration of these issues at the latest at their first DH meeting in 2013 in the light of an action plan to be submitted by the authorities.

RUSSIAN FEDERATION

Application: 42525/07+

Judgment final on: 10/04/2012

ANANYEV AND OTHERS v. the Russian Federation

Enhanced procedure: pilot judgment

Reference texts:

Letter from the Court DH-DD(2012)415

Interim Resolutions (Kalashnikov group) ResDH(2003)123 and CM/ResDH(2010)35

Decision adopted at the 1144th meeting

Case description: Structural problem highlighted by the European Court by applying the pilot-judgment procedure: poor conditions of detention of the applicants in remand centres (SIZO) under the authority of the Ministry of Justice (Article 3) and lack of an effective remedy in this respect (Article 13).

Under Article 46 of the Convention, the Court recalled that the existence of the structural problems had already been stressed by the Committee of Ministers and acknowledged by the Russian authorities. The Court underlined that the structural nature of this widespread problem results from a malfunctioning of the Russian penitentiary system and insufficient legal and administrative safeguards against the proscribed kind of treatment. This multifaceted problem owes its existence to a large number of negative factors, both legal and logistical in nature. The Court abstained from indicating specific reforms which should be undertaken by the Russian authorities. At the same time, the Court suggested a number of avenues and underlined that two issues should in particular be addressed by the Russian authorities, namely the problem of excessive length of pre-trial detention and possible additional ways of combating the overcrowding through provisional arrangements and safeguards against the admission of prisoners in excess of the prison capacity.

As regards the domestic remedies, the Court hold that the Russian authorities must produce, in co-operation with the Committee of Ministers, by 10 October 2012, a binding time frame in which to make available a combination of effective remedies having preventive and compensatory effects and complying with the requirements set out in the Court’s judgment.

As regards other similar cases lodged with the Court, it held that the Russian authorities must grant redress to the applicants in these cases within twelve months from the date on which the present judgment became final (that is before 10 April 2013) or from the date on which the Government knew about their applications.

The pressing need for comprehensive general measures has already been highlighted by the Committee of Ministers in the Kalashnikov group of cases (Interim Resolutions ResDH(2003)123 and CM/ResDH(2010)35).

Status of execution: An action plan is awaited.

Individual measures: Information is awaited on the applicants’ current situation and in particular on whether they are still in detention and if so, on whether the conditions of their detention are compatible with the Convention requirements.

General measures: During the first examination of this case at the 1144th meeting (June 2012), the Deputies underlined the importance of timely compliance with the pilot judgment and invited the Russian authorities to produce, in co-operation with the Committee of Ministers, a binding time-frame for the setting-up of domestic remedies as required by the judgment. The Deputies further recalled that in addition to this binding time frame for the setting-up of domestic remedies, the Russian authorities have an obligation to present to the Committee of Ministers a comprehensive action plan on other general measures aimed at addressing problems underlying the repetitive violations of the Convention.

Application

Case

Judgment of

Final on

42525/07+

ANANYEV AND OTHERS

10/01/2012

10/04/2012

1150th meeting - Notes

As can be seen from the case description, the magnitude of the structural problem highlighted by the pilot judgment of the Court - and for some time by the Committee of Ministers in the Kalashnikov group of cases (ResDH(2003)123 and CM/ResDH(2010)35) – urgently demands the adoption of effective general measures to combat the sources of the problem. In this context, it should be recalled that on 17/04/2012 the Section Registrar of the Court addressed a letter to the Secretary of the Committee of Ministers, in which he noted that given the nature of the underlying problems and the large number of similar cases pending or lodged with the Court, swift and effective implementation of this pilot judgment is extremely important for preserving the effectiveness of the Convention system (DH-DD(2012)415).

In its pilot judgment, the Court gave the Russian authorities six months from the date on which the judgment becomes final to produce, in co-operation with the Committee of Ministers, a binding time frame for the establishment of the necessary remedies.

However, it seems that, given the magnitude of the problem and the large number of people affected, any consideration of domestic remedies, both preventive and compensatory, must be done within a more general framework of a search for solutions with a medium and long-term perspective, aimed at reducing the level of prison population. In this regard, the Committee noted in its decision adopted at the 1144th meeting, that the Russian authorities should also provide a comprehensive action plan on other general measures aimed at resolving the problems at the origin of the repetitive violations of the Convention.

The Russian authorities have already provided information on progress made in this area to the Committee on several occasions (see the Interim Resolutions above). The Court in its pilot judgment has also noted the positive trends in the evolution of the situation. Notwithstanding these trends, the Court considered it necessary to apply the pilot-judgment procedure. Consequently, it is now expected that the Russian authorities, while building on the efforts already made and the progress achieved, develop a comprehensive and long-term strategy for the resolution of the structural problem raised in the pilot judgment.

The Russian Federation is one of the beneficiary countries of the Human Rights Trust Fund Project on implementation of pilot judgments, “quasi pilot” judgments and judgments revealing structural problems concerning detention on remand and the effectiveness of the remedies to challenge detention conditions. This project began in July 2012. Discussions are currently under way with the Russian authorities on the activities to be implemented in the framework of this project. It is expected that priority will be given to the issues raised by the pilot judgment.

Decisions

The Deputies

1. recalled that the present pilot judgment concerns the structural problem of poor conditions of pre-trial detention and lack of effective remedies in this respect;

2. noted with satisfaction that the Russian authorities are currently engaged in the process of elaboration of a binding time frame for the introduction of domestic remedies and an action plan on the other measures aimed at addressing this situation with the support of the Human Rights Trust Fund project (“on implementation of pilot judgements, “quasi pilot” judgments and judgments revealing structural problems concerning detention on remand and the effectiveness of the remedies to challenge detention conditions”) and in close co-operation with international experts and the Department for the execution of judgment of the European Court;

3. noted further that the Russian authorities will submit this information by 10 October 2012 as required by the judgment of the Court;

4. decided consequently to resume consideration of these issues at their 1157th meeting (December 2012).

RUSSIAN FEDERATION

Application: 38411/02

Judgment final on: 30/01/2008

GARABAYEV GROUP v. Russia

Enhanced procedure: complex problem

Reference texts:

1. Information from the Russian authorities.

Action plan concerning the Gaforov case DH-DD(2011)798E

Communication concerning the Gaforov case DH-DD(2012)145E

Communication concerning the Klein case DH-DD(2011)584E

Action plan concerning the Klein case DH-DD(2011)601

Action plan concerning the Khaidarov case DH-DD(2011)609

Action plan concerning the Khodzhayev case DH-DD(2011)623

Action plan concerning the Sultanov case DH-DD(2011)739E

Communications concerning the Yuldashev case DH-DD(2011)638E, DH-DD(2012)143

Communications concerning the Iskandarov case DH-DD(2012)94, DH-DD(2012)390E

Action plan concerning the Iskandarov case DH-DD(2012)103

Communication concerning the Konontsev case DH-DD(2012)142

Communication concerning the Karimov case DH-DD(2012)144, DH-DD(2012)306E

Communication concerning the Abdulazhon Isakov case DH-DD(2012)146

Communication concerning the Kolesnik case DH-DD(2012)147

Communication concerning the Muminov case DH-DD(2012)391E

Action plan concerning the Garabayev group DH-DD(2012)152E

Communication concerning the Garabayev group DH-DD(2012)489E

Additional action plan concerning the Garabayev group DH-DD(2012)755E

2. Communications from the applicants’ representatives.

Communication from the applicant's representative in the Sultanov case DH-DD(2011)624

Communication from the applicant's representative in the Iskandarov case DH-DD(2012)24

Communication from an NGO (Garabayev group) DH-DD(2012)158E

Joint communication from NGOs and lawyers(Garabayev group) DH-DD(2012)422E

Communication from the applicants’ representatives DH-DD(2012)854

Letter from the registry (Latipov case) DH-DD(2012)538E

Letter from the Registry (Savriddin Dzhurayev case) DD(2012)214

Decision adopted at the 1136th meeting

Decision adopted at the 1144th meeting

Case description: Most of the cases concern violations of Article 5§1 due to the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to extradition and of time-limits for such detention. They also concern violations of Article 5§4 due to the lack of the possibility for a person detained pending extradition to initiate judicial review of the lawfulness of his detention.

In a number of cases, the European Court found that there would be a violation of Article 3 if the applicants were extradited to the requesting countries and that the domestic courts failed to scrutinise rigorously the applicants' allegations of risk of ill-treatment (violation of Article 13).

The Iskandarov case concerns a specific issue of the applicant's unreported and arbitrary arrest in 2005, after the request for his extradition had been officially refused, by allegedly unknown persons whom the Court found to be Russian State agents (Article 5§1) and his forcible transfer to Tajikistan in circumstances in which the authorities must have been aware that the applicant faced a real risk of ill-treatment (Article 3).

Status of execution: Individual measures: No individual measures are required (applicants released, extradition orders quashed and the applicants' names removed from the wanted list where necessary), except in the Muminov and Iskandarov cases, in which the applicants are in custody in Uzbekistan and Tajikistan respectively, and Ergashev and Yakubov cases, in which the Court concluded that there is a risk of ill-treatment if the applicants are sent to Uzbekistan.

As regards the Muminov and Iskandarov cases, on 3/09/2012 the Russian authorities provided up-dated information on the applicants’ current situation and on the efforts made to ensure the payment of the just satisfaction (DH-DD(2012)755).

As regards the Iskandarov case, on 3/09/2012 the Russian authorities submitted a detailed report on the domestic investigation (DH-DD(2012)755).

As regards Ergashev and Yakubov cases, information is urgently awaited on the measures taken in order to ensure that the applicants are not sent to Uzbekistan.

General measures: On 09/02/2012, the Russian authorities submitted an action plan for the execution of this group of cases (DH-DD(2012)152E). It results from this document that the Ministry of Justice should finalise before the end of 2012 draft legislative amendments to the Code of Criminal procedure to bring its provisions governing extradition in line with the Convention requirements.

Since the last examination of these cases, the Supreme Court has adopted a comprehensive Ruling on extradition procedure. In its Ruling of 14/06/2012, the Supreme Court gave guidelines to lower courts on how to apply domestic legislation in the light of the Convention requirements, in particular on how to assess whether a person whose extradition is requested faces a risk of ill-treatment in the receiving country and on the procedure for ordering and extending detention pending extradition.

As regards the Iskandarov case, at its 1136th (March 2011) and 1144th (June 2012) meetings, the Committee repeatedly expressed its concerns, notably in view of the fact that other similar incidents have recently taken place in respect of five other applicants whose applications are pending before the Court (see the letter from the Registry of the Court DH-DD(2012)214E and a NGOs’ submission DH-DD(2012)422E). At the 1144th meeting, the Russian authorities indicated that in order to prevent new similar violations, the Committee’s previous decision had been widely disseminated to all authorities concerned and that since then no other similar incidents had taken place (DH-DD(2012)489E).

On 3/09/2012 the Russian authorities provided an additional action plan/report on the general measures required in the Garabayev group of cases, including measures adopted following the Iskandarov judgment (DH-DD(2012)755).

GARABAYEV GROUP

Application

Case

Judgment of

Final on

38411/02

GARABAYEV

07/06/2007

30/01/2008

38124/07

DZHURAYEV

17/12/2009

28/06/2010

66317/09

ELMURATOV

03/03/2011

15/09/2011

42443/02

EMINBEYLI

26/02/2009

26/05/2009

25404/09

GAFOROV

21/10/2010

11/04/2011

19316/09

GALEYEV

03/06/2010

03/09/2010

14049/08

ISAKOV ABDULAZHON

08/07/2010

22/11/2010

17185/05

ISKANDAROV

23/09/2010

21/02/2011

2947/06

ISMOILOV AND OTHERS

24/04/2008

01/12/2008

54219/08

KARIMOV

29/07/2010

21/02/2011

21055/09

KHAYDAROV

20/05/2010

04/10/2010

52466/08

KHODZHAYEV

12/05/2010

04/10/2010

13476/04

KHUDYAKOVA

08/01/2009

08/04/2009

24268/08

KLEIN

01/04/2010

04/10/2010

26876/08

KOLESNIK

17/06/2010

22/11/2010

19732/04

KONONTSEV

29/07/2010

29/10/2010

42502/06

MUMINOV

11/12/2008

04/11/2010

04/05/2009

04/02/2011

656/06

NASRULLOYEV

11/10/2007

11/01/2008

8320/04

RYABIKIN

19/06/2008

19/09/2008

16074/07

SHCHEBET

12/06/2008

12/09/2008

15303/09

SULTANOV

04/11/2010

11/04/2011

1248/09

YULDASHEV

08/07/2010

22/11/2010

1150th meeting - Notes

1) Individual measures

a) As regards the Ergashev and Yakubov cases,

The Court found that there would be a risk of violation of Article 3 if the applicants were to be extradited to Uzbekistan. Consequently, the Court indicated that the interim measures must continue to be in force until the judgments become final. These judgments became final on 4 June 2012. It results from the judgment Ergashev against Russia that the applicant’s requests for temporary asylum were repeatedly rejected by the Russian authorities and that the Supreme Court upheld the extradition order issued in his respect. It results from the judgment Yakubov against Russia that on 1 April 2011 the applicant lodged a request for temporary asylum. However, no information is available on the outcome of this procedure. Although his extradition was refused, on 17 February 2010 the Ryazan Regional Court upheld the expulsion order issued against him.

b) As regards the Iskandarov case,

At their 1144th meeting, the Deputies invited the Russian authorities to provide information on the concrete steps taken with a view to ensuring, to the maximum extent possible, that Mr Iskandarov is not subject to a treatment contrary to Article 3 of the Convention. It is recalled that after his illegal transfer, which was according to the Court attributable to the Russian State agents, the applicant was convicted and sentenced in October 2005 to twenty two years’ imprisonment and is currently serving his sentenced in a Tajik prison reserved to former State officials and members of law-enforcement forces.

At the same meeting, the Russian authorities indicated that in response to the United Nations’ and European Court’s requests, the Tajik authorities at high level provided “detailed explanations” guaranteeing that the allegations of “torture and cruel treatment” made by the applicant were groundless (see DH-DD(2012)390E). However, in an earlier submission sent to the Committee, the applicant’s representatives indicated that since the delivery of the Court’s judgment, the applicant is subjected to different threats (see DH-DD(2012)24).

In their latest communication, the Russian authorities pointed out that they have taken all possible measures in order to clarify the applicant’s situation. According to the information provided by the Ministry of Foreign Affairs of the Russian Federation, in July 2012 the applicant was detained in a correctional facility in appropriate conditions. He did not complain in respect of his detention conditions. He regularly receives visits of the General Prosecutor’s Office, of his family and has contacts with media (DH-DD(2012)755).

In these circumstances, the Russian authorities consider that any attempt to influence the applicant’s situation in the detention facility or to ensure his return to Russia will fall outside of their competence. They also stress that any measure, beyond the efforts they have already made, would require them to interfere with the internal affairs of a sovereign State. In this respect, the authorities refer to the fact that the Court in its judgment did not consider appropriate to indicate any individual measure exactly on the same ground.

In this respect, it should be recalled that Mr Iskandarov asked before the Court that the defendant State should ensure his release from Tajik prison and his return to the Russian Federation. The Court observed that the individual measures sought by the applicant would require the respondent Government to interfere with internal affairs of a sovereign State (§161 of the judgment), and having regard to the circumstances of the case the Court did not find it appropriate to indicate any individual measures to be adopted (§ 162 of the judgment). However, in previous paragraphs, the Court recalled that it indicates an individual measure only in exceptional circumstances and that, in principle, it is up to the defendant State, under the supervision of the Committee of Ministers, to choose the appropriate individual measures (§ 160 of the judgment).

As regards the payment of the just satisfaction, the Russian authorities recalled that they are still awaiting for the necessary documents, including the bank details of the applicant or of his representative (DH-DD(2012)755).

Finally, as regards the abduction and forcible transfer of Mr Iskandarov to Tajikistan, it is recalled that at their 1144th meeting, the Deputies regretted that up to now, neither in the Iskandarov case nor in any other case of that type have the authorities been able to make tangible progress with the domestic investigations concerning the applicants' kidnappings and their transfer, nor to establish the responsibility of any state agent.

On 3 September 2012 the Russian authorities provided a detailed report concerning the investigation conducted into the applicant’s kidnapping and his transfer to the Tajik authorities. It results from this report that in the absence of the testimony of the applicant, who does not wish to testify, the authorities in charge of the investigation exhausted all possibilities to go further in their investigations (DH-DD(2012)755).

c) As regards the Muminov case,

It is recalled that the applicant’s extradition was first refused by the Russian authorities. However, he was transferred to Uzbekistan in October 2006 on the ground that he failed to comply with the requirements of the Aliens Act. In January 2007 the applicant was convicted and sentenced to five years and six months’ imprisonment.

On 3 September 2012, the Russian authorities indicated that they had received information from the Uzbek authorities on the applicant’s whereabouts. They shared this information with the applicant’s lawyer. They informed both, the applicant and his representative, of the steps to be taken in order to receive the amount of just satisfaction. The payment of the just satisfaction will be made as soon as the authorities receive the applicant’s response together with his bank details (DH-DD(2012)755).

2) General measures

As regards general measures required by the Iskandarov judgment, it should be noted that no similar incidents have been reported since the 1144th meeting.

As regards other general measures required by the judgments of this group, it is recalled that the violations found by the Court were due to the lack of clear provisions in the Russian legislation for placement in detention pending extradition and its extension.

In this context, the last Decision of the Plenum of the federal Supreme Court should be noted in addition to the measures indicated in the action plan previously submitted by the Russian authorities (DH-DD(2012)152E). Pending the legislative reform, the Supreme Court provided the lower courts with guidelines on how to apply domestic legislation in line with the Convention. In particular, the Supreme Court explained how to assess whether there is a risk of ill-treatment in the country requesting the extradition. These last recommendations are particularly valuable since the lack of assessment of such risk by Russian courts often resulted in the Court’s finding violations of the Convention.

Also it would appear that measures taken by the Russian authorities have produced their results because in a number of judgments (not final yet) delivered in June and July 2012, the Court did not find violations of Article 5§1 and 5§4 similar to those previously found in the judgments of this group. The Court even noted that unlike previous cases concerning Russia, before the expiry of the term fixed by the initial detention order, the detention was extended on several occasions upon the prosecutor’s request by a judge who each time fixed a term thereof4.

These positive developments do not however obviate the need for legislative changes on which the Ministry of Justice is currently working. These modifications will allow to introduce clear provisions on the extradition procedure in the Code of Criminal procedure and will thus become binding on all competent authorities unlike the guidelines of the Supreme Court which in principle constitute recommendations. They would also ensure the compatibility of the existing provisions with the Convention. It concerns in particular the possibility expressly provided by the Code to place a person in detention on the basis of a detention order issued by a foreign court in the absence of a similar order issued by a Russian court. This provision has on several occasions been criticised by the Court5.

In their latest submission, the Russian authorities underlined that this Ruling of the Plenum of the Supreme Court, together with previously adopted measures (such as the Constitutional Court’s decision, instructions issued by the General Prosecutor’s Office), removed any uncertainty which existed with regard to the situation of persons subject to an extradition request. In addition, the Ministry of Justice continue to work on a draft law to amend the Code of Criminal procedure. This draft which should be finalised before the end of the year (DH-DD(2012)755).

Decisions

The Deputies

As regards individual measures

1. noted with interest the information provided by the Russian authorities at the meeting according to which the applicant in the Ergashev case was granted temporary asylum until May 2013 and that appropriate measures are being taken in order to prevent the applicant’s removal from the Russian territory in the Yakubov case;

2. took note of the information provided by the Russian authorities in the Muminov case and invited them to clarify whether, considering the sentence to which the applicant was convicted upon his arrival to Uzbekistan, he is still in detention;

3. took note of the information provided by the Russian authorities on the applicant’s current situation in the Iskandarov case and invited the Russian authorities to continue to provide, to the maximum extent possible, information on his situation;

4. noted with regret that to date no-one responsible for the applicant’s illegal transfer to Tajikistan has been identified in the Iskandarov case;

5. encouraged the Russian authorities to enhance their efforts aimed at payment of just satisfaction in the Muminov and Iskandarov cases;

As regards general measures

6. noted that no incidents similar to those described in the Iskandarov case took place since the last examination of this case by the Committee and invited the Russian authorities to continue to take all necessary measures in order to ensure that such incidents no longer occur in the future;

7. welcomed the adoption on 14 June 2012 by the Supreme Court of the Russian Federation of a Ruling providing important guidelines on how to apply domestic legislation in the light of the Convention requirements, in particular with regard to Articles 3 and 5 of the Convention;

8. noted further with satisfaction that the measures adopted by the Russian authorities in response to the judgments of this group (the Constitutional Court’s decision, instructions issued by the Prosecutor General and the Decisions of the Plenum of the Supreme Court) have already resulted in a number of judgments of the Court finding no violations of the Convention;

9. encouraged the Russian authorities to ensure rapid progress with regard to the preparation and adoption of the legislative reform required by these judgments.

RUSSIAN FEDERATION

Application: 57942/00+

Judgment final on: 06/07/2005

KHASHIYEV AND AKAYEVA GROUP v. the Russian Federation

Enhanced procedure: complex problem

Reference texts:

1) Information documents prepared in the context of the Committee of Ministers’ supervision

CM/Inf/DH(2006)32rev2, CM/Inf/DH(2008)33, CM/Inf/DH(2008)33add, CM/Inf/DH(2010)26

2) Interim Resolution CM/ResDH(2011)292

3) Information provided by the Russian authorities DD-DH(2011)130E, DD-DH(2011)129E (confidential)

Most recent submissions

Communication from the Russian Federation DH-DD(2012)757E

Additional report concerning general and individual measures: DH-DD(2012)488Part1E,

DH-DD(2012)488Part2E

DH-DD(2011)934E (Confidential): Information on execution of the judgments of the European Court of Human Rights on applications regarding issues of violations of human rights during the crisis settlement in the Chechen Republic

DH-DD(2011)935E (Confidential): Additional information on execution of the judgments of the European Court of Human Rights on applications regarding issues of violation of human rights during the crisis settlement in the Chechen Republic with regard to the questions raised at the meeting of the Committee of Ministers (13-14 September 2011)

DH-DD(2011)977: Report on the measures, adopted by the Russian authorities, to ensure search for missing persons and on implementation of limitation period for bringing to criminal responsibility (in the cases connected with violation of human rights during settlement of the crisis in the Chechen Republic

4) Most recent communications from the injured parties or their representatives

DH-DD(2012)524: Communication from a NGO (Russian Justice Initiative) on a number of individual cases

DH–DD(2011)922E Communication from the applicants' representative (cases of Abuyeva and others and Isayeva)

DH-DD(2010)384E Communication from the applicants' representatives in the Kashiyev group

DH-DD(2010)291E Communication from the applicants’ representatives in the Kashiyev group

DH-DD(2010)587E Communication from the applicants’ representatives in 3 cases of the Khashiyev group

DH-DD(2011)410E Communication from a NGO, legal representative of the applicants, in the Khashiyev group

DH-DD(2011)422E: Communication from a NGO in the Khashiyev group

DH-DD(2012)730E: Communication from a NGO in the case of Zara Isayeva

Decision adopted at the 1120th meeting

Decision adopted at the 1128th meeting

Decision adopted at the 1144th meeting

Case description: Violations resulting from or relating to the Russian authorities' actions during anti-terrorist operations in Chechnya in 1999-2006 (mainly unjustified use of force, disappearances, unacknowledged detentions, torture and ill-treatment, unlawful search and seizure and destruction of property), lack of effective investigations into the alleged abuses and absence of an effective domestic remedy in this respect (violations of Articles 2, 3, 5, 6, 8 and 13 and of Article 1 of Protocol No. 1). Several cases also concern failure to co-operate with the Convention organs as required under Article 38 of the Convention.

Status of execution:

1. Latest developments in the Committee’s examination of these cases

In response to the Committee of Ministers’ Interim Resolution CM/ResDH(2011)292 adopted at the 1128th meeting (December 2011), the Russian authorities provided at the 1144th meeting (June 2012) information on general measures as well as reports on a number of individual cases, such as Abuyeva and others, Isayeva, Bazorkina, Sadykov, Akhmadova and others, and Khadisov and Tsechoyev cases (DH-DD(2012)488 - part 1 and DH-DD(2012)488 - part 2).

a) General measures

As regards search for disappeared persons, the Russian authorities referred to the following general measures:

    - adoption of amendments to Article 178 of the Code of Criminal procedure providing for the necessity to register the DNA profile of all unidentified bodies;

    - implementation of the programme on fight against abductions and search for missing persons for 2011-2014 adopted in the North Caucasian Federal District;

    - setting up by the Ministry of the Interior of the Chechen Republic of the new “Forpost” database of all abducted and missing persons;

    - modernisation of the already existing database “Opoznanye” which constitutes a centralised record of missing persons and unidentified bodies;

    - adoption by the federal Ministry of the Interior of new instructions on the procedure of registration and examination of reports concerning missing persons and unidentified bodies;

    - enhanced cooperation between the Ombudsman of the Chechen Republic and the Investigative Committee and Prosecutor’s office with regard to disappearances as well as with other NGOs.

b) Individual measures

It results from the information provided that important developments took place in two particular cases:

As regards the Sadykov case, two perpetrators were arrested and released following the application of the Amnesty Act.

As regards the Isayeva and Abuyeva and others cases, a third investigation was carried out after the Abuyeva and others judgment. This investigation was closed on 16 March 2012 on the grounds that the actions of military servicemen were lawful.

On 17/05/2012, the Russian Justice Initiative submitted a communication in a number of individual cases mainly concerning access to investigative files by victims and their representatives and the results of the use of remedies available to them (DH-DD(2012)524).

2. The questions raised by the Committee at its 1144th meeting (June 2012)

In its decision adopted at the 1144th meeting (June 2012), the Committee invited the Russian authorities to provide information on:

    - the means used or envisaged to deal with the problems raised by the fact that the matters under investigation date from long ago, including by the destruction of archives and other evidence;

    - the impact the expiry of the statute of limitations may have on effective investigation and prosecution of perpetrators;

    - the conditions under which the Amnesty Act could be applied, notably on who decides on the qualification of the offence which will trigger or not the application of the Amnesty Act;

    - the use of DNA tests in the framework of investigations into the fate of disappeared persons.

The Committee also underlined the need to enhance search for disappeared persons. Finally, special attention was given to the Isayeva and Abuyeva and others cases. The Russian authorities were invited to provide clarification as to what extent the third investigation remedied all the shortcomings repeatedly identified by the Court in its two judgments.

On 30/08/2012, the Russian authorities provided an additional action plan/report on the measures taken to execute the judgements of the Court in the Khashiyev group. This information concerns:

- the conditions under which the amnesty is applied;
- the impact of the expiry of the statutory time-limit in criminal matters on the on-going investigations;
- the use of DNA test;
- the measures taken or envisaged to solve the problems posed by investigations dating from long ago, in particular that of access to archives.

The Russian authorities also provided information on the state of the domestic investigations in certain individual cases, such as Sadykov, Bazorkina, Isayeva and Abuyeva and aothers Akhmadova, Khadisov and Tsechoyev and Musayeva (see DH-DD(2012)757).

KHASHIYEV AND AKAYEVA GROUP

Application

Case

Judgment of

Final on

57942/00+

KHASHIYEV AND AKAYEVA (list of cases)

24/02/2005

06/07/2005

1150th meeting – Notes

Concerning the conditions under which the amnesty is applied

The essential question is who decides on the qualification of the offence, which is crucial to the triggering – or not- of the application of the amnesty law. It seems for example that in Russian law the facts amounting to ill-treatment or torture could be subject to different qualification, i.e. under Article 117 of the Criminal code “Torment”, under Article 286 §§2 and 3 of the Criminal code “Abuse of authority” or under Article 111 of the Criminal code “ Infliction of serious bodily harm”. The offences provided for in Articles 111 and 117 of the Criminal code are excluded from the scope of application of the Amnesty Act. It is therefore important to receive clarifications on the circumstances in which the decision relating to the qualification of the offence is taken (that is, at what stage and by whom). It would also be useful to know whether the victim could challenge the decision relating to the qualification of the offence, in particular in the framework of a remedy against the decision relating to the application of the Amnesty Act.

Concerning the statutes of limitations in criminal matters

Concerning the statutes of limitations in criminal matters, a number of factors have to be taken into consideration. Firstly, it must be noted that the normal statutory time-limit can be extended because of its suspension. Under Russian law the limitation period stops running if the person concerned tries to escape from the investigating authorities or from the court. The period of the statutory time-limit which is left starts running anew on the day the person concerned is apprehended6.

Furthermore, the expiry of the statutory time-limit will not always be an obstacle to the prosecution and the conviction of the person responsible. The Russian Criminal code provides that if the offence committed by the person concerned is punishable with the most severe penalties, only the judge can decide whether or not to allow such a person to benefit from the expiry of the statutory time-limit. In this context, the question raised is whether the judge is bound by the qualification of the offence or whether he can change it.

However, apart from these two situations, it would seem that in all other cases, the expiration of the statutory time-limit is an obstacle to the prosecution and conviction of the person responsible, notwithstanding the on-going investigations. The investigating authorities must apply the statutory time-limit and drop the charges against the person concerned (on the conditions of this application and possible remedies see DH-DD(2012)755).

On 15/01/2011, the Head of the Investigative Committee adopted an Order which provides that the investigation cannot be terminated simply because the statutory time-limit has elapsed and without the person responsible having been identified. The Russian authorities underline on this point that even if the fact to continue the investigation after the expiration of the statutory time-limit does not allow the sentencing of the identified perpetrators, it will contribute to the establishment of the circumstances of the incident or of the death, of the fate of the missing persons and to the identification of burial sites.

The question of accountability remains however open, in particular in the situations in which the investigation which has been carried out is considered as ineffective or whose delays prevents the identification and the punishment of the persons responsible before the expiry of the limitation period. This situation has already been addressed by the Court who finds a violation of the procedural aspect of Article 3 if the domestic authorities have not acted with sufficient speed and diligence letting the limitation period expire and creating a climate of virtual impunity.7 The same idea is reflected in the Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations.8

In general, questions are raised on how to conciliate the different interests at stake. On the one hand, there are considerations put forward by the authorities according to which the fact that with the passing of time, the sanction could lose its preventative effect and be perceived as vengeance (see the communication of the Russian authorities DH-DD(2012)757). On the other hand, there are considerations relating to the fight against impunity9. It appears that a possible way to reconcile these different considerations could be that the opening of an investigation interrupts the time-limit. However, Russian law does not provide for any possible reason for interrupting the time-limit, as time continues to run during the investigation.

Concerning the use of DNA tests in the framework of investigations into the fate of disappeared persons.

The question of using DNA tests in the framework of domestic investigations was addressed at the seminar which took place in Paris on 20 and 21 June. This seminar was organised in the framework of the Human Rights Trust Fund project and was dedicated to all aspects of the search for missing persons. At this occasion, international experts presented different techniques used in the search for missing persons and had an exchange of views with the Russian participants from the Ministry of the Interior, the Office of the Prosecutor General, the Investigation Committee and judicial instances. It is expected that the Russian authorities will present the consequences of their reflection in this area to the Committee in the near future, notably in the light of the subjects addressed during the seminar.

Concerning problems linked to the age of facts which are the subject of investigations, including the destruction of archives and other evidence.

It appears in the light of the different communications of the Russian authorities that the difficulties with which the Russian authorities are confronted in this area are not due to the absence of access archives. Indeed, even if the documents sought are likely to be secret, the investigators can usually access these after obtaining a judicial decision. The difficulties arise more from the absence of relevant documents in the archives. This situation is explained by different factors:

    - the limited period foreseen in legislation or regulations for the conservation of certain documents (this concerns mostly certain registers such as those for vehicles used at the time of the events, orders of attribution of cover names and military/security forces detachments);

    - the destruction of a certain number of documents in the context of security operations or terrorist attacks.

In these circumstances, the question arises of to what extent it is possible to address these lacunas and overcome the absence of the necessary documents. It appears that a certain number of steps have been taken by the investigators to this end (attempts to obtain relevant information by other means, setting-up a working group with other bodies concerned etc.) However, the impact of these measures in the short and medium term perspective is not clear.

Conclusion

An analysis of the different questions seems to show that beyond the measures taken by the different authorities, a global and coordinating strategy is necessary.

The setting-up of a strategy implying a higher level of coordination and cooperation, ad hoc or institutionalised, between the different authorities concerned calls for reflexion. In particular, such a strategy should ensure that the different necessary tools are set up, at legislative or statutory level, such a database regrouping the available information concerning the different crimes committed during the period of reference, effective mechanisms guaranteeing the protection of witnesses and the intensification of the search for missing persons.

It is recalled that, in its interim resolution adopted in December 2011, the Committee has already urged the Russian authorities to enhance their efforts so that independent and thorough investigations into all abuses found in the Court’s judgments are conducted in particular by ensuring that the investigating authorities use all the means and powers at their disposal to the fullest extent possible and by guaranteeing unconditional and effective cooperation of all the military and law-enforcement bodies in the framework of such investigations.

Decisions

The Deputies

1. recalled that the Committee has already expressed deep concern that no decisive progress has been made in domestic investigations carried out in respect of the grave human rights’ violations identified in the judgments in the vast majority of cases;

2. recalled further that the Committee has also emphasised, in particular in its Interim Resolution CM/ResDH(2011)292 adopted in December 2011, the need for priority and comprehensive action in order to increase the effectiveness of domestic investigations, bearing in mind the risk that with the passage of time the prosecution of those responsible may become time-barred;

3. drew the attention of the Russian authorities to the Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations (Adopted by the Committee of Ministers on 30 March 2011 at the 1110th meeting of the Ministers’ Deputies);

4 expressed their grave concern about the application of acts of amnesty to certain situations;

5. called upon the Russian authorities to reshape their strategy for dealing with these cases and underlined that in addition to the time-table for its implementation, such a strategy should necessarily address, amongst many others, the following issues:

- the authorities’ position with regard to the impact the expiry of the statute of limitations will have on domestic investigations and on providing redress to the victims;

- the authorities’ position with regard to the application of the Amnesty Act;

- the measures taken in order to enhance the search for disappeared persons;

- the measures aimed at overcoming the absence of the necessary documents in the archives;

- the evaluation of the impact of the already adopted measures on the effectiveness of domestic investigation together with concrete examples and relevant statistics;

6. invited the authorities to continue to provide information on developments concerning the investigations in the cases previously identified by the Committee;

As regards Isayeva and Abuyeva and others cases

7. recalled that both judgments concern the same facts relating to a security operation carried out in Katyr-Yurt in February 2000 which resulted in numerous civilian casualties following the use of lethal force and heavy combat weapons by Russian security forces;

8. recalled further that this situation and the successive domestic investigations have already given rise to two judgments of the Court which on both occasions found the same violations of the Convention and in the second judgment made a number of conclusions under Article 46 of the Convention in respect of individual measures required;

9. underlined the Court’s main conclusion that a new, independent investigation, including a study of the proportionality and necessity of the use of lethal force, attribution of individual responsibility for the aspects of the operation and the evaluation of such aspects by an independent body, appeared to be inevitable;

10. observed that a third investigation was carried out by the Russian authorities following the Abuyeva and others judgment and took note of the information provided according to which the decision to close this investigation has recently been quashed and the case has been sent for additional investigation;

11. called upon the Russian authorities to ensure that this additional investigation eventually addresses all the shortcomings repeatedly identified by the Court and invited them to provide detailed information in this respect so as to enable the Committee to ascertain that this investigation has effectively paid due regard to all the Court’s conclusions.

Application: 57950/00, 27065/05

Judgment final on: 24/02/2005, 02/12/2010

ISAYEVA v. the Russian Federation

ABUYEVA AND OTHERS v. the Russian Federation

Enhanced procedure: complex problem

Reference texts:

Communication from the Russian authorities DH-DD(2011)977

Communication from the Russian authorities as regards individual measures, including on the cases of Isayeva and Abuyeva and others DH-DD(2012)488 - part 2

Communication from the Russian authorities DH-DD(2012)757

Communication from the Russian Federation DH-DD(2012)836

Communication from the applicants' representative in the cases of Abuyeva and others and Isayeva against the Russian Federation DH–DD(2011)922E

Communication from the European Human Rights Advocacy Centre (EHRAC) and Memorial in the cases of Abuyeva and others and Isayeva against the Russian Federation DH-DD(2012)730

Decision adopted at the 1144th meeting

Case description: Both cases concern the security operation conducted by the Russian military forces between 4 and 7 February 2000 in the village of Katyr-Yurt following its capture by a large group of Chechen fighters who had escaped from Grozny. During the operation, Russian forces used heavy combat weapons. As a result, dozens of people were killed or wounded.

The Court first found that while the operation pursued a legitimate aim, it was not planned and executed with requisite care for the lives of civilians. In doing so, the Court disagreed with the conclusions of the army experts who found the commanders’ actions legitimate (two expert reports were never communicated to the Court) and concluded that the authorities had failed to properly organise the evacuation of the civilians from the combat area (substantive violations of Article 2).

The Court further found that the domestic investigations (carried out in 2002 and in 2005 following the Isayeva judgment) were both ineffective (procedural violations of Article 2), the second investigation suffering from exactly the same defects as those previously identified by the Court.

Finally, the Court found that as the criminal investigation into the bombardment had been ineffective, the effectiveness of any other remedy that might have existed, including civil remedies, had consequently been undermined (violations of Article 13 in conjunction with Article 2).

As regards Article 46 of the Convention, the Court noted “with great dismay” in the Abuyeva and others judgment that in carrying out the new (second) investigation, the Russian authorities “manifestly disregarded the specific findings of the binding judgment delivered in the Isayeva case”. The Court observed that the investigation compiled a large amount of data about the events and that Individual omissions appeared to be easily rectifiable on the basis of the existing documents. The Court however noted that no independent study of the proportionality and necessity of the use of lethal force had been carried out. The Court considered it “inevitable that a new and independent investigation should take place, which would bear due regard to the conclusions in respect of the failures of the investigation carried out to date”.

Status of execution: Individual measures: The first criminal investigation was carried out by the Russian authorities in 2000-2002. This investigation was closed in March 2002, it found the actions of the military to have been legitimate in the circumstances, as a large group of illegal fighters had occupied the village and refused to surrender. The Court examined this first investigation in its Isayeva judgment and found a procedural violation of Article 2 of the Convention.

Following the Isayeva judgment, the investigation was resumed in November 2005. In June 2007, this (second) investigation was closed, with the same conclusions as in March 2002, i.e. a refusal to prosecute because the actions of the Russian military forces were found to be legitimate. This second investigation was examined by the Court in its Abuyeva and others judgment and resulted in another procedural violation of Article 2 of the Convention. In addition, the Court examined the Russian authorities’ actions under Article 46 of the Convention and concluded that a new independent investigation was inevitable.

Following the Abuyeva and others judgment, the investigation was once again resumed. On 16 March 2012 a decision to terminate the proceedings was issued on exactly the same grounds as two previous ones (see DH-DD(2012)488 – part 2).

At its 1144th meeting (June 2012), the Committee of Ministers invited the Russian authorities to provide clarifications as to what extent the third investigation remedied all the shortcomings repeatedly identified by the Court in its two judgments.

On 30/08/2012 the Russian authorities indicated that the decision to terminate the proceedings was quashed by the Deputy Head of the Military Investigation Department for the Southern Military District of the Investigative Committee and the case was currently subject to an additional investigation (DH-DD(2012)757).

General measures: General measures are examined in the framework of the Khashiyev group of cases (as regards the issues related to the use of force and firearms, see in particular the Memoranda CM/Inf/DH(2006)32 rev2, §§ 17-44 and CM/Inf/DH(2008)33, §§ 7-26).

Application

Case

Judgment of

Final on

57950/00

ISAYEVA

24/02/2005

06/07/2005

27065/05

ABUYEVA AND OTHERS

02/12/2010

11/04/2011

1150th meeting – Notes

It is recalled that the present cases concern a military operation during which dozens of civilians were killed or wounded. In the Abuyeva and Others judgment, the Court concluded that all the major flaws of the investigation indicated in 2005 persisted throughout the second set of proceedings, which ended in June 2007. As a result, the Court was once again bound to conclude that no effective investigation had occurred. The major flaws identified by the Court in respect of two investigations may be summarised as follows:

- failure to take any steps to clarify the crucial issues of responsibility for the safety of the civilian evacuation and of the “reprisal” character of the operation against the population of Katyr-Yurt; no question about these aspects of the operation were posed to the military or civilian authorities or to the servicemen involved at ground level;

- decisions to terminate the proceedings were taken by military prosecutors on the basis of expert reports prepared by army officers in the absence of an independent judicial control;

- failure to compile an exhaustive list of victims over the seven years after the attack had taken place;

- failure to inform the applicants about the most important procedural steps taken, in breach of the relevant domestic legislation; the Court considered that this failure constituted a particularly grave breach of the requirement to effectively investigate the use of lethal force by State agents.

At the 1144th meeting (June 2012) (DH), the Russian authorities provided information on the third investigation carried out into the same events following the Abuyeva and others judgment (DH-DD(2012)488 – part 2). As a result of this new investigation, a decision to terminate the proceedings was taken on 16 March 2012. The main developments of this investigation may be summarised as follows:

- the new investigation was carried out by the military investigators of the Investigative Committee, a new structure set up in September 2007;

- 139 persons were granted victim status, which is 44 persons more than in the framework of the previous investigation;

- victims and witnesses from the civilian population were questioned; however, they could not provide any new information given the remoteness of the events;

- the head of the local administration at the time of the events could not be questioned about the evacuation of the civilians due to his death in March 2002;

- a forensic and tactical examination was carried out by the Military Academy which concluded that the commandment’s actions related to the planning and conducting of the operation were reasonable and in compliance with the domestic legislation.

In order to assess whether this new investigation constitutes an appropriate response to the Court’s findings in its two judgments, the Committee invited at its 1144th meeting the Russian authorities to provide clarification as to what extent the third investigation remedied all the shortcomings repeatedly identified by the Court. Information was in particular requested on the scope of this investigation, on whether the victims’ families could effectively participate in the investigation and on the possibilities open to them to challenge in court the decision to terminate the proceedings. The Russian authorities are expected to explain how the measures taken in the framework of this investigation (see above) remedied the specific findings made by the Court.

It is recalled that a number of measures taken to remedy the repetitive shortcomings of domestic investigations are examined in the Khashiyev group of cases (see e.g. Memorandum CM/Inf/DH(2010)26 and Interim Resolution CM/ResDH(2011)292). However, according to the Committee’s constant position, the effectiveness of such measures would very much depend on the results achieved in the concrete cases.

On 30/07/2012 two NGOs, European Human Rights Advocacy Centre (EHRAC) and Memorial, submitted a communication under Rule 9 of the Committee’s Rules for the supervision of the execution of the European Court’s judgments on “the initiation by the Committee of Ministers of infringement proceedings in relation to the judgment of the European Court in Isayeva against Russia” (see DH-DD(2012)730).

Decisions

The Deputies

1. recalled that the Committee has already expressed deep concern that no decisive progress has been made in domestic investigations carried out in respect of the grave human rights’ violations identified in the judgments in the vast majority of cases;

2. recalled further that the Committee has also emphasised, in particular in its Interim Resolution CM/ResDH(2011)292 adopted in December 2011, the need for priority and comprehensive action in order to increase the effectiveness of domestic investigations, bearing in mind the risk that with the passage of time the prosecution of those responsible may become time-barred;

3. drew the attention of the Russian authorities to the Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations (Adopted by the Committee of Ministers on 30 March 2011 at the 1110th meeting of the Ministers’ Deputies);

4 expressed their grave concern about the application of acts of amnesty to certain situations;

5. called upon the Russian authorities to reshape their strategy for dealing with these cases and underlined that in addition to the time-table for its implementation, such a strategy should necessarily address, amongst many others, the following issues:

- the authorities’ position with regard to the impact the expiry of the statute of limitations will have on domestic investigations and on providing redress to the victims;

- the authorities’ position with regard to the application of the Amnesty Act;

- the measures taken in order to enhance the search for disappeared persons;

- the measures aimed at overcoming the absence of the necessary documents in the archives;

- the evaluation of the impact of the already adopted measures on the effectiveness of domestic investigation together with concrete examples and relevant statistics;

6. invited the authorities to continue to provide information on developments concerning the investigations in the cases previously identified by the Committee;

As regards Isayeva and Abuyeva and others cases

7. recalled that both judgments concern the same facts relating to a security operation carried out in Katyr-Yurt in February 2000 which resulted in numerous civilian casualties following the use of lethal force and heavy combat weapons by Russian security forces;

8. recalled further that this situation and the successive domestic investigations have already given rise to two judgments of the Court which on both occasions found the same violations of the Convention and in the second judgment made a number of conclusions under Article 46 of the Convention in respect of individual measures required;

9. underlined the Court’s main conclusion that a new, independent investigation, including a study of the proportionality and necessity of the use of lethal force, attribution of individual responsibility for the aspects of the operation and the evaluation of such aspects by an independent body, appeared to be inevitable;

10. observed that a third investigation was carried out by the Russian authorities following the Abuyeva and others judgment and took note of the information provided according to which the decision to close this investigation has recently been quashed and the case has been sent for additional investigation;

11. called upon the Russian authorities to ensure that this additional investigation eventually addresses all the shortcomings repeatedly identified by the Court and invited them to provide detailed information in this respect so as to enable the Committee to ascertain that this investigation has effectively paid due regard to all the Court’s conclusions.

RUSSIAN FEDERATION

Application: 2700/10

Judgment final on: 06/07/2005

KIYUTIN v. the Russian Federation

Enhanced procedure : Urgent individual measures

Reference texts:

Action plan/report DH-DD(2012)160E

Additional information from the authorities with the request to transfer from enhanced to standard procedure: DH-DD(2012)457E

Case description: Discrimination of the applicant, a foreigner living in Russia with his Russian wife and their minor child, on the ground that he was HIV positive (Article 14 in conjunction with Article 8). His application for residence permit was refused in 2009 by reference to legal provisions preventing the issuing of a residence permit to HIV-positive foreigners and not making room for an individualised evaluation. The Court underlined that although the Constitutional Court of the Russian Federation indicated in 2006 that these provisions did not exclude the possibility of having regard to humanitarian considerations in exceptional cases, it is not clear whether that interpretation gave the domestic authorities discretion to override the imperative regulation of the law (§72 of the judgment).

Status of execution: Individual measures: following the Court’s judgment, the proceedings in the applicant’s case were reopened and the refusal to grant the applicant a residence permit was quashed. On 21/03/2012 the applicant was issued a residence permit.

General measures: in their action plan/report provided on 06/02/2012 (see DH-DD(2012)160), the Russian authorities submitted information on the dissemination and publication of the judgment and considered that no further general measures were needed. They referred to the interpretation given by the Constitutional Court in 2006 (see the case description above). They further underlined that this interpretation was binding on all state bodies, including courts. They concluded that the violation in the present case was a single incident resulting from the wrong application of the relevant legal provision, which should have been applied in its interpretation made by the Constitutional Court in 2006.

A letter was sent to the Russian authorities asking for additional information on general measures and inviting them to provide a revised action plan/report by the end of October 2012.

Application

Case

Judgment of

Final on

2700/10

KIYUTIN

10/03/2011

15/09/2011

1150th Meeting - Notes

It is recalled that this case was initially classified under the enhanced procedure because it required the adoption of urgent individual measures. In this respect, the Deputies may note that on 21 March 2012 the applicant was issued a residence permit.

As regards general measures, the Russian authorities are invited to provide information on whether further general measures are still needed in order to prevent new similar violations, in particular bearing in mind the Court’s conclusions with regard to the scope of the Constitutional Court’s decision (see in particular §72 of the judgment).

In view of the individual measures taken, the Deputies may wish at this stage to continue their supervision of the case in respect of outstanding general measures under the standard procedure.

Decisions

The Deputies

1. recalled that the violation of the Convention found by the Court in this case was due to the Russian authorities’ refusal to grant to the applicant, a foreign national living in Russia with his Russian wife and their minor child, a residence permit on the grounds that he was HIV positive;

2. noted with satisfaction that the required urgent individual measures have been taken and the applicant has been issued a residence permit;

3. decided, in the light of the foregoing, to pursue their supervision of the execution of this judgment under the standard supervisory procedure, without prejudice to the assessment of general measures;

4. invited the authorities to provide a revised action plan/report by the end of October 2012.

SLOVENIA

Application: 26828/06

Judgment final on: 26/06/2012

KURIC AND OTHERS v. Slovenia

Enhanced procedure, pilot judgment

Reference texts:

Case description: The case primarily concerns a violation of the applicants’ right to their private and/or family lives in that they had been deprived, automatically and without prior notification, of their status as permanent residents in Slovenia after its declaration of independence (violation of Article 8). The “erasure” of the resident status concerned an entire category of former citizens of Socialist Federal Republic of Yugoslavia (the “SFRY”) who had permanent residence in Slovenia and the citizenship of one of the other SFRY republics at the time of Slovenia’s declaration of independence.

The case also concerns the lack of an effective remedy on account of the applicants’ complaints under Article 8 (violation of Article 13 in conjunction with Article 8).

Lastly, the case concerns the discrimination against the applicants whose situation was significantly altered after the declaration of independence of Slovenia when compared with that of aliens who did not originate from other SFRY republics (violation of Article 14 in conjunction with Article 8).

In this case, the Court applied the pilot-judgment procedure and requested the respondent state to introduce within one year after the judgment became final (i.e. by 26/06/2013) an ad hoc domestic compensation scheme for the “erased” who are still denied compensation for the infringement of their fundamental rights. At the same time, the Court decided to adjourn for one year the examination of all similar applications pending the adoption of the remedial measures at issue.

Status of execution: Individual measures: Six applicants have already been granted permanent residence permits. However, two applicants (Mr Dabetić and Mrs Ristanović) did not apply for residence permits and, therefore, the European Court declared their cases inadmissible (§ 292). The European Court considered however that the issuing of permanent residence permit did not constitute sufficient redress for the violations found because the applicants were not awarded proper financial redress for the years during which they were in position of vulnerability and legal insecurity (§§401, 412). The Court awarded just satisfaction to the applicants in respect of non-pecuniary damages sustained. It reserved however the question of compensation for pecuniary damage having regard to any agreement which might be reached between the Slovenian authorities and the applicants and in light of the individual or general measures that may be taken by the authorities in execution of this judgment. Information is therefore awaited on any agreement reached with the applicants in respect of compensation of pecuniary damage sustained or any other individual measures aimed at remedying their individual situation.

General measures: As indicated by the European Court, the Slovenian authorities should introduce an ad hoc domestic compensation scheme for the “erased” who are still denied compensation for the infringement of their fundamental rights. This compensation scheme should be introduced until 26/06/2013 at the latest. An action plan is awaited in this respect.

Application

Case

Judgment of

Final on

26828/06

KURIC AND OTHERS

26/06/2012

Grand Chamber

1150th meeting – Notes

Information on the structural nature of the problem: The European Court noted that the number of former SFRY citizens who had lost their permanent residence status in Slovenia on the date of its declaration of independence was 18,305. Approximately 2,400 of these persons had been refused citizenship. These persons therefore became to be known as “erased” (§32). As a result of the “erasure” of their permanent residence status, the “erased” became aliens or stateless persons illegally residing in Slovenia. It appears that, as of June 2011, approximately 13,000 of the “erased” have been still waiting for their residence status to be settled (§322). Given that the “erasure” affected an entire category of persons, the European Court found that “the facts of this case disclosed the existence, within the Slovenian legal order, of a shortcoming as a consequence of which the whole category of the “erased” are still denied compensation for the infringement of their fundamental rights” (§412). Although only a few similar applications are currently pending before the European Court, it pointed out that the potential for inflow of future cases was substantial (§414).

Information on the Legal Status Act 2010: The amended Legal Status Act, which entered into force on 24 July 2010, provides that the “erased” could request to obtain permanent residence permits. Such requests can be made until 24 July 2013. The Government have set up an intergovernmental commission in order to monitor the implementation of the amended Legal Status Act and to tackle the problem of the “erased” (§§404, 410). The European Court considered that it would be premature at this stage to examine whether this law and other measures taken so far regulates the residence status of the “erased” satisfactorily (§411).

Decisions

The Deputies

1. noted that the European Court, in the pilot judgment in the case of Kurić, found “that the facts of the case disclose[d] the existence, within the Slovenian legal order, of a shortcoming as a consequence of which the whole category of the “erased” are still denied compensation for the infringement of their fundamental rights”;

2. noted further that the European Court decided to indicate to the Government of the respondent State that it should, within one year, set up an ad hoc domestic compensation scheme to redress the applicants and those who are in the same situation;

3. bearing in mind the deadline set by the Court for the introduction of such a scheme, invited the Slovenian authorities to provide, as soon as possible, an action plan setting out the measures taken and envisaged and to keep the Committee informed on the developments of the situation;

4. invited also the Slovenian authorities to provide information on any agreement reached with the applicants in respect of compensation of pecuniary damage sustained or any other individual measures aimed at remedying their individual situation.

SPAIN

Application: 21532/08

Judgment final on: 18/01/2012

MARTINEZ MARTINEZ v. Spain

Enhanced procedure: Urgent individual measures

Reference texts:

Action plan (20/01/2012) DH-DD(2012)176F

Communication from the authorities DH-DD(2012)676F

Case description: Violation of the right to respect for private and family life due to the fact that, since 2001, the applicant and his family are suffering from the noise caused by the music bar on the terrace of a club located at a distance of 3-4 meters from their house (Article 8).

The Court considers that there can be a causal link between the noise, the repetitive disturbances caused by sound and the illnesses suffered by the applicant himself, his wife and their daughter (§ 21-27, 49 of the judgment). It based its assessment particularly on an expert report and on several medical reports - especially concerning the applicant's child, who needs to sleep at least 8 hours per night due to her chronic illness.

Status of execution:

Individual measures: following the Court’s judgment, the Spanish authorities provided an action plan indicating that they immediately asked to the competent local authorities to adopt all measures necessary to urgently enforce the judgment of the European Court.

By letter of 17/07/2012, the authorities indicated that the music bar on the terrace at issue has been transformed in a restaurant, this meaning (among the other things) that the loud-speakers have been removed from the terrace and panels for sound absorption have been installed: a license to operate was granted on 31/03/2012. The local authorities underline that this modification determined a significant reduction of the level of noise and of the opening hours of the terrace, and that the maximum authorised level of noise is not exceeded. This has been confirmed by an acoustic investigation carried out on 04/07/2012 on the whole building where the terrace is located.

General measures: information provided by the authorities in their action plan is under assessment.

Application

Case

Judgment of

Final on

21532/08

MARTINEZ MARTINEZ

18/10/2011

18/01/2012

1150th meeting – Notes

In the light of the individual measures adopted by the authorities, the Deputies might wish to continue their supervision of the execution of this case under the standard procedure.

Decisions

The Deputies

1. recalled that in the present case the Court found a violation of the right to respect for private and family life due to the fact that, since 2001, the applicant and his family are suffering from the noise caused by the music bar on the terrace of a club located at a distance of a few meters from their house;

2. noted with satisfaction the individual measures adopted with a view to remedying that situation;

3. decided, in the light of the foregoing, to pursue their supervision of the execution of this case under the standard procedure.

TURKEY

Application 28490/95

Final judgment 19/09/2003

HULKI GUNES GROUP v. Turkey

Enhanced procedure: urgent individual measures

Reference texts:

Interim Resolutions: ResDH(2005)113; CM/ResDH(2007)26; CM/ResDH(2007)150

Two letters sent by CM Chairmen and the replies provided by Turkey : DD(2005)148; DD(2005)494

Information document CM/Inf/DH(2009)5

Communication from Turkey DH-DD(2012)547

Communication from the authorities DH-DD(2012)851

Decision adopted at the 1144th meeting

Case description: Unfair criminal proceedings (the applicants were sentenced to lengthy prison terms on the basis of statements made by gendarmes or other persons who never appeared before court, or on the basis of statements obtained under duress and in the absence of a lawyer); ill-treatment of applicants while in police custody; lack of independence and impartiality of state security courts; excessive length of criminal proceedings; absence of an effective remedy (violations of Article 6§§1 and 3 and of Articles 3 and 13).

Status of execution: From the beginning of its examination of the case of Hulki Güneş, the Committee considered that the proceedings in the applicant's case required reopening in order to redress the violations found by the European Court. However, the provisions on reopening of proceedings (which entered into force in 2003) are not applicable to the applicants' cases. The applicants’ requests for reopening of proceedings have therefore been rejected at domestic level.

Since 2003, the Committee of Ministers has repeatedly urged the Turkish authorities to take the necessary measures (three interim resolutions have been adopted between 2005 and 2007 and two respective Chairmen sent letters to their Turkish counterparts in 2005 and 2006 conveying the Committee’s concerns). In December 2008 the Committee decided to examine these cases at each of its regular meetings.

In October 2009, the Turkish authorities indicated that “a draft law aimed at allowing the reopening of proceedings in the applicants’ cases had been prepared by the Ministry of Justice and sent to the office of the Prime Minister and would be submitted with priority to Parliament […] with a view to its adoption before the end of 2009”. Subsequently, the Committee was informed that the draft law had been sent to Parliament. On the basis of this information, the Committee decided to examine these cases at its DH meetings. However, the draft law has not been adopted. Therefore, in numerous decisions adopted since December 2009, the Committee has reiterated its call on the Turkish authorities to bring the legislative process to an end without any further delay.

At the 1136th meeting (March 2012), noting that the draft law has not been sent to Parliament, the Committee strongly urged the Turkish authorities to provide information on the content of the draft and to provide a clear time-table for its adoption.

In response to the Committee’s request the Turkish authorities provided information to the Committee at the 1144th meeting (June 2012) on the content of the draft law and indicated that this draft law could be added to the set of amendments (i.e. “Third package” of laws to be adopted within the context of the “Reform on Judiciary”) that could be adopted in July 2012. The authorities also indicated that in case the draft law could not be added to the “Third package”, it could also be added to the “Fourth package” of laws that would solely contain draft laws aiming at prevention of human rights violations and was expected to be presented to the Council of Ministers in the near future. At the same meeting, the Committee invited the Turkish authorities to keep the Committee informed of the ongoing legislative process.

HULKI GÜNEŞ GROUP

Application

Case

Judgment of

Final on

28490/95

HULKI GÜNEŞ

19/06/2003

19/09/2003

72000/01

GÖÇMEN

17/10/2006

17/01/2007

46661/99

SÖYLEMEZ

21/09/2006

21/12/2006

25060/02+

ERDAL ASLAN

02/12/2008

02/03/2009

1150th Meeting - Notes

Description of the draft law provided by the Turkish authorities at the 1144th meeting (June 2012): The draft law removes the legal obstacle in the Code of Criminal Procedure which prevented the reopening of proceedings in the applicants’ cases. In a transitional article, the draft law provides that those who were prevented from requesting reopening of proceedings because of the legal obstacle in the Code of Criminal Proceedings and those whose requests were rejected on the same grounds previously shall be entitled to request reopening of proceedings in their cases within one year after the date on which the law enters into force. Since the applicants’ cases fall under the former category, they will be able to request the reopening of proceedings in their cases once the draft law is adopted.

Decisions

The Deputies

1. recalled that during the 1144th meeting (June 2012), the Turkish authorities indicated that the draft law allowing the reopening of proceedings in the applicants’ cases could be added to the set of amendments (i.e. “Third package”) which were expected to be adopted by Parliament in July 2012 and that in case the draft law could not be added to the “Third package”, it could be added to the “Fourth package” of draft laws which was expected to be presented to the Council of Ministers in the near future;

2. recalled further that during the same meeting, the Turkish authorities also indicated that they were seeking other options in case difficulties were to arise regarding the adoption of the draft law in question;

3. took note of the information provided by the Turkish authorities during the present meeting that the above-mentioned draft law was not adopted by Parliament in July 2012;

4. noted that, as this draft law was not adopted, the Turkish authorities have prepared an alternative draft law, which allows the reopening of proceedings in cases under the supervision of the Committee of Ministers as of 15 June 2012 and which require the reopening of proceedings as an individual measure;

5. also noted that the Turkish authorities have indicated that this second draft law is expected to be brought before Parliament in the near future within the scope of the “Fourth package” of draft laws;

6. urged the Turkish authorities to provide information to the Committee of Ministers on this legislative process for the 1157th meeting (December 2012) (DH), and to bring it to an end without any further delay in view of the fact that nine years have passed since the judgment in the case of Hulki Güneş became final.

TURKEY

Application 39437/98

Judgment final on 24/04/2006

ÜLKE v. Turkey

Enhanced procedure: urgent individual measures

Reference texts:

Interim resolutions: CM/ResDH(2007)109 ; CM/ResDH(2009)45

Letter sent by the Chairman and the response of the Turkish authorities: DD(2009)556; DD(2010)107

Letter of 20/07/2011 sent by the applicant’s representative: DH-DD(2011)600

Communication from the applicant's representative DH-DD(2012)545E

Communication from the applicant's representative (20/09/2012) DH-DD(2012)844

Communication from the authorities DH-DD(2012)791

Decision adopted at the 1144th meeting

Case description: Degrading treatment as a result of the applicant's repetitive convictions between 1996 and 1999 and imprisonment for having refused to perform compulsory military service on account of his convictions as a pacifist and conscientious objector (substantive violation of Article 3).

Status of execution: From the beginning of its examination of this case, the Committee of Ministers considered that the Turkish authorities should take individual measures in order to ensure that the applicant is no longer searched for by the authorities and that he will not be prosecuted again (two interim resolutions and numerous decisions have been adopted and two letters by the respective Chairmen of the Committee were sent to the Turkish authorities urging them to take these measures). Despite the Committee’s demands to obtain information on the applicant’s situation, this information was not provided and the applicant’s situation remained unclear. The Turkish authorities have stated before the Committee that the execution of this judgment raised certain difficulties since it required legislative amendments concerning military service.

By a letter of 20/07/2011, the applicant’s representative communicated to the Committee a letter from the Office of the military prosecutor of the Eskişehir 1st Air Forces Command informing her that there was currently a valid arrest warrant against the applicant on account of a criminal investigation pending against him for desertion. According to the information submitted by the applicant’s representative, police officers visit the applicant’s mother’s house every three or six months and ask about the applicant’s whereabouts.

At the 1136th meeting (March 2012), the Turkish authorities confirmed that there was a valid arrest warrant against the applicant for desertion. At the same meeting, the Committee strongly urged the Turkish authorities to withdraw the arrest warrant or in alternative to find another solution in order to erase the consequences of the violation for the applicant and to provide a clear time-table for the adoption of the general measures envisaged to execute the judgment.

At the 1144th meeting (June 2012), the Turkish authorities informed the Committee that the arrest warrant against the applicant was lifted by a decision given on 4 June 2012 by the Eskişehir Military Court. The Committee then invited the Turkish authorities to provide a copy of the decision in question, together with an assessment of its impact on the applicant’s current situation, in particular as to whether the applicant is still subject to further prosecution or conviction and whether he can exercise his civic rights without hindrance. At the same meeting, the Turkish authorities informed the Committee that consultations were ongoing among relevant authorities with the aim of identifying the general measures required to execute the Ülke judgment. Information is expected on these consultations as well as on a precise time-table for the adoption of general measures.

On 06/09/2012, the Turkish authorities provided a copy of the decision of the Eskişehir Military Court and informed the Committee that, although the investigation against the applicant for desertion was still ongoing, the military prosecutor decided to remove the applicant’s name from the list of persons searched for by the police, following the decision of the Eskişehir Military Court. The authorities stressed that the applicant can currently exercise his civic rights without any hindrance and, in particular, that he can obtain a passport and travel abroad.

Concerning the general measures, no information has been submitted regarding the ongoing consultations among the relevant authorities, nor a time-table for their adoption.

Application

Case

Judgment of

Final on

39437/98

ÜLKE

24/01/2006

24/04/2006

1150 meeting – Notes

Information provided regarding the applicant’s current situation: It appears from the information provided by the Turkish authorities that, following the decision of the Eskişehir Military Court, the applicant can henceforth exercise his civic rights without any hindrance, obtain a passport and travel abroad. However, as a result of the application of the legislation in force, an investigation against the applicant for desertion is still pending. There is therefore a theoretical possibility that the applicant can be subject to further prosecution or conviction. Consequently, legislative measures are necessary in order to remedy the applicant’s current situation.

Decisions

The Deputies

1. noted that, according to the information provided by the Turkish authorities, the applicant’s name has been removed from the list of persons searched for by the police as a consequence of the decision of the Eskişehir Military Court of 4 June 2012 whereby the arrest warrant against the applicant was lifted;

2. noted with interest the assurances given by the Turkish authorities that the applicant can exercise his civic rights without any hindrance, obtain a passport and travel abroad;

3. noted however that, as a result of the legislation in force, an investigation against the applicant for desertion is still pending and there is a theoretical possibility that the applicant could be subjected to further prosecution and conviction;

4. urged, therefore, the Turkish authorities to take the necessary legislative measures with a view to preventing the repetitive prosecution and conviction of conscientious objectors in order not only to exclude any possibility of the applicant’s further prosecution and conviction but also to prevent similar violations in the future.

TURKEY

Application: 43647/98

Judgment final on: 21/03/2005

ORMANCI AND OTHERS GROUP v. Turkey

ÜMMÜHAN KAPLAN v. Turkey

Enhanced procedure: pilot judgment/ Structural problem

Reference texts:

Decision adopted at the 1100th meeting

Case description: Excessive length of proceedings before administrative, civil, criminal, labour, land registry, military and commercial and consumers’ courts (violations of Art. 6§1) and lack of an effective remedy in this respect (violations of Art. 13).

The European Court noted in the case of Ümmühan Kaplan that the repetitive violations found against Turkey on account of excessive length of proceedings has been continuing since a number of years and that this situation constituted a systemic and a structural problem in the Turkish legal order. The Court therefore decided to apply the pilot judgment procedure and held that Turkey should introduce an effective domestic remedy against excessive length of proceedings in line with the Convention principles as interpreted by the Court in its case-law. The Court also indicated that Turkey should introduce this remedy within one year after the judgment in the Ümmühan Kaplan case became final (the deadline will expire on 20/06/2013). The Court decided to adjourn the examination of similar applications that has not been yet communicated to the Turkish Government and of those which would be lodged before 23 September 2012 (i.e. the date of the entry into force of right to individual application before the Constitutional Court). The Court will continue examining the applications that have already been communicated under the normal procedure.

Some of the cases examined in the Ormancı group concern violations of Convention rights other than Articles 6 and 13 (see the appendix).

Status of execution: Individual measures: Proceedings in a number of cases in the Ormancı group are still pending. Information is awaited on the current situation of domestic proceedings in those pending cases.

General measures: A number of legislative measures have been taken in recent years with a view to shortening length of proceedings and improving the efficiency of functioning of courts. These measures can be summarised as follows: the number of judges and chambers at the Court of Cassation and the Council of State has been increased; the issuing of inheritance certificates which was previously under the competence of courts was given to public notaries (consequently, 445000 cases have been struck out of court lists); decriminalisation of certain crimes related to military and commercial matters has resulted in the reduction of the heavy workload of military and commercial courts (consequently, 1600000 cases have been struck out of lists of military and commercial courts).

As far as the introduction of a remedy is concerned, the Turkish authorities noted in their action plan of 28/02/2012 that they were in the process of setting up a commission which will be competent to receive complaints and to award compensation in cases of excessive length of proceedings. Legislative work in this respect is ongoing.

ORMANCI AND OTHERS GROUP

Application

Case

Judgment of

Final on

43647/98

ORMANCI AND OTHERS (list of cases)

21/12/2004

21/03/2005

24240/07

ÜMMÜHAN KAPLAN

20/03/2012

20/06/2012

1150th meeting - Notes

Scope of the problem and response of the Turkish authorities: The Committee of Ministers is currently examining 250 cases concerning excessive length of proceedings. In a letter sent by the Registrar of the Court to the Committee of Ministers on 22 June 2012 (DD(2012)4add2E), Turkey appeared among the seven member States which has the highest numbers of repetitive applications pending before the Court. It was particularly noted that there were some 2 500 applications against Turkey concerning excessive length of proceedings.

On 14/11/2011 the Minister of Justice addressed a letter to the Secretary General of the Council of Europe, with a copy to the Registrar of the European Court, and expressed Turkey’s commitment to set up an effective ad hoc remedy in accordance with the case-law of the European Court (see §29 in the case of Ümmühan Kaplan).

Information on the measures taken to increase the number of judges before high courts: The number of chambers and judges at the Court of Cassation and the Council of State Law was increased with coming into force of Law no: 6110 on 14/02/2011 (the number of chambers in the Council of State was increased from 13 to 15 and in the Court of Cassation from 32 to 38. 51 posts for judges were created at the Council of State and 160 at the Court of Cassation). It is expected that these measures will have a positive impact in the reduction of excessive length of proceedings given that the judgments at issue mainly concern excessive length of proceedings before these high courts.

Decisions

The Deputies

1. noted that the European Court, in the pilot judgment in the case of Ümmühan Kaplan, found a structural problem concerning excessive length of proceedings and invited Turkey, within one year from the date on which the present judgment became final, to introduce an effective domestic remedy capable of affording adequate and sufficient redress for excessive length of proceedings;

2. invited the Turkish authorities to introduce an effective domestic remedy in accordance with the principles of the Convention as interpreted by the Court in its case-law, also taking into consideration the indications given by the Court in the Ümmühan Kaplan pilot judgment;

3. invited the Turkish authorities to keep the Committee of Ministers regularly informed of the developments in this respect and to provide information in the form of a consolidated action plan on the measures taken or envisaged for the execution of this pilot judgment, as well as on the current situation of pending proceedings in the Ormancı group of cases.

UKRAINE

Applications: 40450/04, 56848/00

Judgments final on: 15/01/2010, 29/09/2004

YURIY NIKOLAYEVICH IVANOV

ZHOVNER GROUP v. Ukraine

Enhanced procedure: pilot judgment, structural problem

Reference documents:

Information document CM/Inf/DH(2007)30rev

Interim Resolutions CM/ResDH(2008)1, CM/ResDH(2009)159, CM/ResDH(2010)222, CM/ResDH(2011)184

Information document (CM/Inf/DH(2012)29)

Communication from the Registry of the European Court DH-DD(2011)54E

Communication from the Registry of the European Court DH-DD(2011)757E

Communication from Ukraine DH-DD(2011)433E

Communication from Ukraine DH-DD(2011)705E

Communication from Ukraine (DH-DD(2012)775E)

Press release issued by the European Court on 29 February 2012

Decision adopted at the 1144th meeting

Case description: Important sStructural problem highlighted by the Court, applying the pilot-judgment procedure. Since 2004, the Court found a series of violations of the rights of access to a court and protection of property on account of the failure or serious delay by the administration or state companies in abiding by final domestic judgments; lack of an effective remedy in this respect (violations of Articles 6§1, 13 and Article 1 of Protocol No. 1).

Given the absence of measures aimed at resolving this problem, the Court applied the pilot-judgment procedure in the case of Yuriy Nikolayevich Ivanov and set a specific deadline for the setting-up of a domestic remedy in respect of excessive length of enforcement proceedings. The Court also indicated that specific reforms in Ukraine's legislation and administrative practice should be implemented without delay. The Court further invited the respondent state to settle on ad hoc basis all similar applications lodged with it before the delivery of the pilot judgment (1600) and decided to adjourn the examination of similar cases.

Status of execution: The Committee of Ministers has been examining the cases in the Zhovner group since 2004. It adopted four Interim Resolutions so far. Two rounds of high-level bilateral consultations between the Secretariat and the relevant authorities have taken place in Kyiv. Moreover, the Yuriy Nikolayevich Ivanov pilot judgment was examined by the Committee at each of its Human Rights meetings since it became final.

Individual measures: Information on individual measures is still awaited in a number of cases in the Zhovner group (i.e. the enforcement of domestic judicial decisions delivered in the applicants' favour).

General measures: After a prolongation granted by the Court, the deadline set for the introduction of a domestic remedy in respect of excessive length of enforcement proceedings expired in July 2011 without the requested measures having been adopted. A draft law "on State guarantees concerning execution of judicial decisions" aimed at introducing an effective domestic remedy had nonetheless been prepared and adopted by Parliament at first reading on 9 September 2011. However, the legislative procedure was not brought to an end.

In this situation, on 28 February 2012, the Registry of the Court informed the Committee that the Court had decided to resume the examination of the frozen applications raising similar issues, and that about 1 000 new similar applications had been lodged since 1 January 2011.

On 5 June 2012, the new law “On State guarantees concerning execution of judicial decisions” was adopted by Parliament at second and final reading, and signed by the President on 22 June 2012. This law introduces a new specific procedure for the execution of domestic judicial decisions delivered against the State: pecuniary debts are to be met by the State Treasurery if the debtor (State bodies, State companies, or companies whose properties cannot be sold in enforcement proceedings) fail to pay them in due time. The law also provides for automatic compensation if the authorities delay payments under this special procedure. The law will enter into force on 1 January 2013. It however does not foresee any retroactive application of the new provisions with a view to resolving the problem of the repetitive applications.

In a letter sent by the Registrar of the Court to the Committee of Ministers on 22 June 2012 (DD(2012)4add2E) Ukraine appeared among the seven member States which have the highest numbers of repetitive applications pending before the Court. It was particularly noted that there were some 2800 applications concerning non-enforcement of domestic judgments and that a pilot judgment procedure in the case of Ivanov “has failed to produce the results expected at national level with the result that the Court will now have to deal with the remaining cases individually.” The Ukrainian authorities informed the Committee that they have proposed unilateral declarations / friendly settlements in about 1 800 of these complaints and that the process is on-going with respect to the remaining applications.

On 26 July 2012, the Court delivered its first judgment on the defrozen clone applications in the case of Kharuk and others (116 applications) in which it indicated having rejected certain unilateral declarations proposed by the authorities and found violations identical to those at stake in the present group of cases. In addition it noted that the law “will not enter into force before 1 January 2013 and, in any event, do not provide for compensation for the delays in the enforcement of domestic decisions which have already taken place. Furthermore, it is unclear whether the implementation of the new regulations will be supported by sufficient budgetary allocations.”

On 30 July 2012, the Ukrainian authorities provided information to the Committee that the necessary arrangements are being made by the state bodies concerned to ensure the effective implementation of the new law in due time, including as regards the availability of sufficient funds. Concerning the debts originated from decisions already given, the Ukrainian authorities intend to resolve this problem by way of introducing a special payment procedure which shall start functioning in 2014. A law in this respect is being prepared.

Application

Case

Judgment of

Final on

40450/04

YURIY NIKOLAYEVICH IVANOV

15/10/2009

15/01/2010

56848/00

ZHOVNER (list of cases)

29/06/2004

29/09/2004

Decisions

The Deputies

1. recalled having invited the Secretariat, in close co-operation with the Ukrainian authorities, to prepare an evaluation of the situation in the light in particular of the adoption on 5 June 2012 of the law of Ukraine “on State guarantees concerning execution of judicial decisions”;

2. took note of the Memorandum CM/Inf/DH(2012)29 and endorsed the evaluation therein presented;

3. noted further that the above-mentioned law, which will enter into force on 1 January 2013, could constitute an effective domestic remedy in cases of non-enforcement of domestic judicial decisions which will be taken after the entry into force of the said law, provided that the outstanding questions are addressed, including the allocation of sufficient budgetary means;

4. deeply regretted, however, that the law as adopted is not applicable to the already existing domestic judicial decisions and, therefore, does not permit the repatriation of repetitive applications already pending before the Court, nor to stop the influx of new repetitive applications;

5. noted in this context the first judgment delivered by the Court since the defreezing of the repetitive applications in the case of Kharuk and others against Ukraine;

6. urged the Ukrainian authorities once again to take the necessary measures as a matter of utmost urgency in order to resolve the problem of non-enforcement of already existing domestic judicial decisions;

7. invited the Ukrainian authorities to provide further and detailed information in the light of the above-mentioned memorandum in due time for the 1157th meeting (December 2012) (DH);

8. decided to declassify the memorandum CM/Inf/DH(2012)29.

UNITED KINGDOM

Application: 74025/01

Judgment final on: 06/10/2005

HIRST No. 2 GROUP v. the United-Kingdom

Enhanced procedure: pilot judgment

Reference texts:

Interim Resolution CM/ResDH(2009)160

Communication from the United Kingdom (Hirst No. 2) DH-DD(2011)139

Correspondence between the United Kingdom authorities and the Registry of the European Court (Greens and M.T.) DH-DD(2011)679E

Decision adopted at the 1120th meeting

Press release of the European Court of 22 May 2012 Implications of Scoppola (no. 3) Grand Chamber judgment 22.05.2012

Case description: Blanket ban on voting imposed automatically on the applicants due to their status as a convicted offenders detained in prison (violations of Article 3 of Protocol No. 1). Pilot judgment of 23/11/2010, Greens and M.T. (60041/08 and 60054/08, final on 11/04/2011).

Status of execution: Individual measures: In the event that the applicants are detained, their eligibility to vote will depend on the general measures adopted (see §§ 72, 93 and 94 of the judgment in Hirst).

General measures: Since the judgment in Hirst became final in 2005 some initiatives were taken with a view to implementing the judgment, including two public consultations on possible changes to the law. However, no concrete steps were taken, and the Committee of Ministers expressed serious concern about the substantial delay in implementing the judgment in the interim resolution adopted on 3 December 2009. The general election held in the United Kingdom in May 2010, triggered a significant number of repetitive complaints to the European Court (around 2,500).

At its 1120th meeting (September 2011), the Committee recalled that the pilot judgment in Greens and M.T. against the United Kingdom became final on 11 April 2011 and that according to §115 of that judgment, the United Kingdom authorities had until 11 October 2011 to introduce legislative proposals with a view to the enactment of an electoral law to achieve compliance with the Court's judgments in Hirst No.2 and Greens and M.T. The Committee noted that the European Court granted a request from the United Kingdom authorities to extend that deadline to 6 months after the delivery of the Grand Chamber judgment in the case of Scoppola No. 3 against Italy.

Scoppola No. 3 was delivered on 22 May 2012. Consequently, the six months’ time period granted by the European Court began to run on that date.

In the Scoppola No. 3 judgment, the European Court found no violation against Italy but reaffirmed the principles set out by the Grand Chamber in Hirst No. 2 (see §96 Scoppola No. 3).

To date, the United Kingdom authorities have not submitted any information since the judgment in Scoppola No .3 became final.

HIRST No. 2 GROUP

Application

Case

Judgment of

Final on

74025/01

HIRST No. 2

06/10/2005

Grand Chamber

60041/08+

GREENS AND M.T.

23/11/2010

11/04/2011

1150th meeting - Notes

The Court stated in Greens and M.T. and emphasised in Hirst No. 2, that there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision. The Court recalled that its role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight. (§113 of Greens and M.T. and see also §102 of Scoppola No.3).

The European Court also noted in Scoppola No. 3 that “In particular, with a view to securing the rights guaranteed by Article 3 of Protocol No. 1 (see Hirst No. 2) [GC], cited above, § 84, and Greens and M.T., cited above, § 113), the Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied. In this latter case, it will be for the legislature itself to balance the competing interests in order to avoid any general, automatic and indiscriminate restriction. It will then be the role of the Court to examine whether, in a given case, this result was achieved and whether the wording of the law, or the judicial decision, was in compliance with Article 3 of Protocol No. 1” (§102).

Decisions

The Deputies

1. recalled that the question of voting rights of convicted prisoners in prison has been pending before the Committee of Ministers since it began supervising the execution of the judgment in Hirst No. 2 against United Kingdom, namely almost seven years;

2. recalled that the absence of concrete measures taken by the United Kingdom authorities in response to that judgment gave rise to an interim resolution of the Committee (CM/ResDH(2009)160) as well as the adoption by the European Court of the pilot judgment Greens and M.T. against United Kingdom, which became final on 11 April 2011;

3. underlined that according to §115 of the pilot judgment, the authorities had six months from the date that judgment became final to introduce legislative proposals to amend the electoral law imposing a blanket restriction on voting rights of convicted prisoners in prison, and achieve compliance with the Court's judgment in Hirst No. 2;

4. recalled further that on 30 August 2011 the European Court granted a request from the United Kingdom authorities to extend that deadline to six months after delivery of the Grand Chamber judgment in the case of Scoppola No. 3 against Italy;

5. noted that the Grand Chamber delivered its judgment in Scoppola No. 3 against Italy on 22 May 2012 and that consequently, the United Kingdom authorities have until 23 November 2012 to comply with the pilot judgment;

6. called upon the United Kingdom authorities to take the concrete measures necessary to comply with the pilot judgment within the new deadline set by the Court and invited them to keep the Committee regularly informed of developments in this respect;

7. decided to resume consideration of this question at its 1157th meeting (December 2012) (DH).

UNITED KINGDOM

Application: 30562/04

Judgment final on: 04/12/2008

S. AND MARPER v. the United Kingdom

Enhanced procedure: Complex problem

Reference texts:

Action plan (05/05/2011) DH-DD(2011)333E

Information document CM/Inf/DH(2011)22rev

Communication from the United Kingdom: DH-DD(2010)327E

Communication from the United Kingdom DH-DD(2012)728E

Communication from a National Human Rights Institution (NHRI) and reply of the government

DH-DD(2011)437E

Decision adopted at the 1115th meeting

Case description: This case concerns an unjustified interference with the applicants' right to respect for their private life due to the retention for an indefinite period of cellular samples, fingerprints and DNA profiles taken from them in 2001, in connection with their arrest for offences for which they were ultimately not convicted (S., an 11-year-old, was acquitted of attempted robbery and Marper saw charges dropped as the complaint against him for harassment was withdrawn) (violation of Art. 8)

Status of execution: Individual measures: The applicants' fingerprints, DNA samples and profiles have been destroyed. The retention of biometric data taken from one applicant on suspicion of having committed a subsequent criminal offence is linked to the general measures.

General measures: After the judgment became final in December 2008, the United Kingdom authorities put forward initial legislative proposals. At the Committee's request, bilateral consultations were entered into by the United Kingdom authorities and the Secretariat. Following these consultations and a change of government in the United Kingdom in July 2010, the authorities submitted an action plan on 7 March 2011 which detailed legislative proposals to execute the judgment in England and Wales. An analysis of the proposals is presented in Memorandum CM/Inf/DH(2011)22rev. These legislative proposals were adopted in the Protection of Freedoms Act 2012 on 1 May 2012, but have not yet been brought into force.

In its last decision in this case (1115th Meeting (DH) 7-9 June 2011) the Committee of Ministers welcomed the proposals set out in the action Plan in particular that a time limit of three years for the retention of fingerprints and DNA profiles would be introduced for individuals arrested but not convicted for a serious offence, with a possible, single extension of two years upon application of the police to the national courts. In that decision, the Committee of Ministers also invited the UK authorities:

    - to provide evidence on how the time-limit of three years was selected;

    - to provide information on consideration of the special treatment of minors in this context;

    - to provide information on the measures to implement the judgment in Northern Ireland;

In response, the United Kingdom authorities submitted information on 14th and 17th October 2011 (see DD-DH(2012)728).

Evidence on how the time-limit of three years was selected

The information submitted sets out the statistical evidence for the time-limit selected. It indicates that the risk of re-offending for adults charged but not convicted of a serious offence falls to the same level as that of the general population around three years after the arrest. It concludes that this statistical evidence supports a three year time limit for the retention of DNA and fingerprints taken from those arrested but not convicted of serious offences.

Consideration of the special treatment of minors in this context

The information submitted also summarises how the retention period for minors was selected. According to this information, the risk of minors reoffending after arrest is higher than that for adults. However, a range of other factors should be taken into account, including the particular position of children in society highlighted in the European Court's judgment, and this justifies the selection of a 3 year retention period for fingerprints and DNA profiles taken from minors arrested for serious offences.

Measures to implement the judgment in Northern Ireland

The United Kingdom authorities indicated that a Public consultation on legislative proposals for the retention and destruction of DNA and fingerprints in Northern Ireland ended on 7 June 2011. In the main, the proposals replicate those currently contained within the Protection of Freedoms Act 2012 and are included in the Criminal Justice Bill (Northern Ireland), which was introduced into the Northern Ireland Assembly on 25 June 2012. It is envisaged that the Bill will complete its passage by February/March 2013.

In addition to the three issues identified by the Committee in their last decision, the Memorandum also addressed the question of interim measures, and the authorities confirmed that now the Protection of Freedoms Act had received Royal Assent, the police in England and Wales would begin removing the profiles of unconvicted people from the National DNA Database. In their response to a Rule 9 submission from the Northern Ireland Human Rights Commission (DD-DH(2010)437), the authorities indicated that the same approach would apply for Northern Ireland in due course. On 30 July 2012, the authorities indicated that the deletion of material would begin in England and Wales within the next two to three weeks.

Application

Case

Judgment of

Final on

30562/04+

S. AND MARPER

04/12/2008

Grand Chamber

Decisions

The Deputies

1. recalled that in its last decision concerning this case the Committee of Ministers welcomed the authorities’ legislative proposals for England and Wales in response to the European Court’s judgment, set out in the Action plan (see decision from its 1115th meeting (DH) 7-8 June 2011), and noted with satisfaction that these proposals were adopted in the Protection of Freedoms Act 2012 on 1st May 2012;

2. noted that when selecting a three year retention period for data taken from minors arrested for serious offences the authorities took into account the particular position of children in society as highlighted in the European Court’s judgment;

3. noted with interest that legislative proposals which replicate the Protection of Freedoms Act 2012 are under consideration in Northern Ireland and strongly encouraged the authorities to progress those proposals as quickly as possible;

4. invited the authorities to keep the Committee of Ministers updated on the coming into force of the legislation in England, Wales and subsequently Northern Ireland, and on the deletion of DNA profiles and fingerprints not covered by the new legislation;

5. agreed, in light of the above, to transfer this case for supervision under the standard procedure.

C. Classification of cases10

Item 1

Classification of new judgments which became final before 6 July 2012

(a) standard procedure

Decisions

The Deputies

1. noted that the judgments below have become final before 6 July 2012;

2. decided to examine these cases under the standard procedure: list of cases.

* * *

(b) enhanced procedure11

Decisions

The Deputies

1. noted that the judgments below have become final before 6 July 2012;

2. decided to examine these cases under the enhanced procedure: list of cases.

* * *

Item 1 bis

Transitional provisions

Classification of other cases pending before the entry into force of the new working methods

Decision

The Deputies agreed to revert to the question of classification of the following case at their next Human Rights meeting, it being understood that the case will until then be under standard procedure:

REPUBLIC OF MOLDOVA / REPUBLIQUE DE MOLDOVA and / et RUSSIAN FEDERATION / FEDERATION DE RUSSIE

48787/99

ILAŞCU AND OTHERS

CM/ResDH(2007)106

08/07/2004

Grand Chamber

 

Item 2

Change of classification12

(a) from standard to enhanced

no case.

(b) from enhanced to standard

See the cases of

MARTINEZ MARTINEZ against Spain

KIYUTIN against the Russian Federation

S. AND MARPER against the United Kingdom

D. Supervision of payment of the just satisfaction

Decisions

The Deputies

1. noted that in the following cases, no information had been supplied to the Committee of Ministers or that the information supplied concerning the payment of the just satisfaction awarded by the European Court is incomplete;

2. invited the States concerned to supply information confirming payment of the sums in questions without delay.

Link to the list

* * *

E. Action plans

Revised list of cases which became final after the entry into force of the new working method

and for which an action plan has been presented to the Committee since the last meeting

Decisions

The Deputies

1. noted that, in the cases below, action plans setting out the measures planned to abide by the judgments of the Court have been presented;

2. invited the authorities of the member states concerned to keep the Committee of Ministers regularly informed of the progress made in the implementation of these action plans.

Application

Requête

Case

Affaire

Judgment of /

Arrêt du

Final on /

Définitif le

Ref. doc

AZERBAIJAN / AZERBAIDJAN

36122/06

NATIG MIRZAYEV

22/11/2011

22/02/2012

DH-DD(2012)675E

BOSNIA AND HERZEGOVINA / BOSNIE-HERZEGOVINE

39446/06+

HADZIC AND SULJIC

07/06/2011

07/09/2011

DH-DD(2012)766E

BULGARIA / BULGARIE

36760/06

STANEV

17/01/2012

Grand Chamber

DH-DD(2012)710F

CROATIA / CROATIE

15526/10

V.D.

08/11/2011

08/02/2012

DH-DD(2012)781E

52442/09

DURDEVIC

19/07/2011

19/10/2011

DH-DD(2012)780E

GERMANY / ALLEMAGNE

17080/07

SCHNEIDER

15/09/2011

15/12/2011

DH-DD(2012)589E

HUNGARY / HONGRIE

2345/06

DEES

09/11/2010

09/02/2011

DH-DD(2012)750E

29436/05

ZOLTAN NEMETH

14/06/2011

14/09/2011

DH-DD(2012)749E

GREECE / GRECE

53466/07

KONSTAS

24/05/2011

28/11/2011

DH-DD(2012)760F

ITALY / ITALIE

14737/09

SNEERSONE AND KAMPANELLA

12/07/2011

12/10/2011

DH-DD(2012)601E

46286/09+

MAGGIO AND OTHERS

31/05/2011

31/08/2011

DH-DD(2012)714E

17214/05+

SAVINO AND OTHERS

28/04/2009

28/07/2009

DH-DD(2012)717E

MONTENEGRO

17229/04

ZIVALJEVIC

08/03/2011

15/09/2011

DH-DD(2012)602E

PORTUGAL

19808/08

FRANCELINA FONTES MOREIRA FERREIRA

05/07/2011

05/10/2011

DH-DD(2012)690F

ROMANIA / ROUMANIE

9718/03

GEORGEL AND GEORGETA STOICESCU

26/07/2011

26/10/2011

DH-DD(2012)628E

42344/07

PREDICA

07/06/2011

07/09/2011

DH-DD(2012)674E

SLOVENIA / SLOVENIE

5774/10+

MANDIĆ AND JOVIĆ

20/10/2011

20/01/2012

DH-DD(2012)699E

SPAIN / ESPAGNE

2034/07

OTEGI MONDRAGON

15/03/2011

15/09/2011

DH-DD(2012)678F

UNITED KINGDOM / ROYAUME-UNI

39401/04

MGN LIMITED

18/01/2011

18/04/2011

DH-DD(2012)702E

* * *

F. Adoption of final resolutions – Revised list

Decisions

The Deputies adopted the final resolutions set out in document CM/Del/Dec(2012)1150 Volume of Resolutions, in respect of the judgments listed below:

Resolution / Résolution

Application / Requête

Case / Affaire

Judgment or decision of / Arrêt ou decision du

Final on / Définitif le

 

AUSTRIA / AUTRICHE

CM/ResDH(2012)…

2029/06

MAIR

13/12/2011

Decision / décision

CM/ResDH(2012)…

23960/02

ZEMAN

29/06/2006

10/01/2008

29/09/2006

 

BELGIUM / BELGIQUE

CM/ResDH(2012)…

44418/07

PONCELET

30/03/2010

04/10/2010

CM/ResDH(2012)…

926/05

TAXQUET

16/11/2010

16/11/2010

CM/ResDH(2012)…

19443/02

VANDAELE AND VAN ACKER

10/08/2006

 
 

BOSNIA AND HERZEGOVINA / BOSNIE-HERZEGOVINE

CM/ResDH(2012)…

9336/08

JESIC

17/05/2011

Decision / décision

41925/06

MURATSPAHIC AND OTHERS

07/02/2012

Decision / décision

 

CROATIA / CROATIE

CM/ResDH(2012)…

11861/08

BARIŠIĆ

13/01/2011

Decision / décision

50337/09

CVETNIC

12/04/2011

Decision / décision

60268/09

FRGACIC

12/04/2011

Decision / décision

42697/10

JUG

24/05/2011

Decision / décision

24008/07

MAKSIMOVIĆ AND OTHERS

14/10/2010

Decision / décision

51454/08

BORA MALIĆ

17/02/2011

Decision / décision

24845/09

MEDIC

17/02/2011

Decision / décision

41489/09

PAPIC

29/03/2011

Decision / décision

30097/10

PETRINA

13/01/2011

Decision / décision

30224/10

PLAZIBAT

17/01/2012

Decision / décision

64676/09

PRODANOVIC

22/02/2011

Decision / décision

4129/10

UJDUROVIĆ

13/01/2011

Decision / décision

 

CYPRUS / CHYPRE

CM/ResDH(2012)…

37402/08

G.N. ELLINAS IMPORTS EXPORTS LIMITED

16/09/2010

Decision / décision

 

DENMARK / DANEMARK

CM/ResDH(2012)…

38058/09

OSMAN

14/06/2011

14/09/2011

 

FRANCE

CM/ResDH(2012)…

57435/08

GOUTTARD

30/06/2011

30/09/2011

CM/ResDH(2012)…

22575/08

KATRITSCH

04/11/2010

04/02/2011

CM/ResDH(2012)…

52124/08

STASZKOW

06/10/2011

06/01/2012

CM/ResDH(2012)…

32820/09

VELLUTINI AND MICHEL

06/10/2011

06/01/2012

CM/ResDH(2012)…

53640/00

BAUCHER

24/07/2007

24/10/2007

CM/ResDH(2012)…

22590/04

GIRARD

30/06/2011

30/09/2011

CM/ResDH(2012)…

36497/05

LIGUE DU MONDE ISLAMIQUE AND ORGANISATION ISLAMIQUE MONDIALE DU SECOURS ISLAMIQUE

15/01/2009

15/04/2009

 

GEORGIA / GEORGIE

CM/ResDH(2012)…

30323/02

PANDJIKIDZE AND OTHERS

27/10/2009

27/01/2010

4313/04

GORGUILADZE

20/10/2009

20/01/2010

 

GERMANY / ALLEMAGNE

CM/ResDH(2012)…

20999/05

HELLIG

07/07/2011

07/10/2011

 

LATVIA / LETTONIE

CM/ResDH(2012)…

9278/06

CESNIEKS

06/03/2012

9278/06

 

LUXEMBOURG

CM/ResDH(2012)…

14356/08

GUILL

16/02/2012

 
 

THE NETHERLANDS / PAYS-BAS

CM/ResDH(2012)…

26036/08

LALMAHOMED

22/02/2011

22/05/2011

CM/ResDH(2012)…

30666/08

VAN VELDEN

19/07/2011

19/10/2011

CM/ResDH(2012)…

277/05

S.T.S.

07/06/2011

07/09/2011

 

PORTUGAL

CM/ResDH(2012)…

73229/01

REIGADO RAMOS

22/11/2005

22/02/2006

CM/ResDH(2012)…

23205/08

KAROUSSIOTIS

01/02/2011

01/05/2011

775/08

MICHAEL DORE

01/02/2011

01/05/2011

 

RUSSIAN FEDERATION / FEDERATION DE RUSSIE

CM/ResDH(2012)…

30280/03

MALYSH AND OTHERS

11/02/2010

28/06/2010

27191/02

SPK DIMSKIY

18/03/2010

04/10/2010

24461/02

TRONIN

18/03/2010

04/10/2010

 

SAN MARINO / SAINT-MARIN

CM/ResDH(2012)…

63983/09

GATTEI

10/05/2011

Decision / décision

 

SERBIA / SERBIE

CM/ResDH(2012)…

50780/06

A.

20/03/2012

Decision / décision

1339/08

ALEKSANDRIC

08/03/2011

Decision / décision

53337/07

ANASTASOV

08/03/2011

Decision / décision

19682/08

ARSENOVIC

20/03/2012

Decision / décision

20946/11

DOKIC II

20/03/2012

Decision / décision

48735/07

DOKIC

31/01/2012

Decision / décision

16702/08

DOKIC

27/09/2011

Decision / décision

31402/08

DURICA

08/03/2011

Decision / décision

403/08

EVT COMPANY No. II

29/03/2011

Decision / décision

11707/07

GRAĐANSKI LIST - CREDENDA CLASSICS D.O.O. AND OTHERS

21/06/2011

Decision / décision

40721/06

ILJANA MILOSAVLJEVIC No 4

22/02/2011

Decision / décision

52512/07

JELIC

29/03/2011

Decision / décision

49337/06

JOKSIC

13/12/2011

Decision / décision

52464/07

JOVANOVIĆ

09/11/2010

Decision / décision

18998/08

KAROVIC

29/03/2011

Decision / décision

36185/08

KERKEZ AND ALEKSIC

10/05/2011

Decision / décision

24262/08

KODZO

08/03/2011

Decision / décision

14050/07

LAZAREVIC

29/03/2011

Decision / décision

50480/07

MANOLA AND OTHERS

15/03/2011

Decision / décision

24208/08

MARIC

28/01/2011

Decision / décision

16722/08

MARKOVIC

27/09/2011

Decision / décision

5245/07

MAVRIC

29/03/2011

Decision / décision

1268/08

MIHIĆ

07/12/2010

Decision / décision

48197/06

MILENKOVIC

29/03/2011

Decision / décision

18501/06+

MILOSAVLJEVIC 23 AND 7 APPLICATIONS

29/03/2011

Decision / décision

21482/07+

MILOSAVLJEVIC 31, 32, 44, 45

08/03/2011

Decision / décision

10234/08

MILOSEVIC

15/11/2011

Decision / décision

30829/08

MIRC

29/03/2011

Decision / décision

30016/06

MLADENOVIC

15/03/2011

Decision / décision

24193/08

MUTAVDIC

28/01/2011

Decision / décision

13350/07

NEDELJKOVIC

06/03/2012

Decision / décision

32728/08

PEJCINOVIC

29/03/2011

Decision / décision

22144/07

PETROVIC

29/03/2011

Decision / décision

30828/08

RADIN

24/05/2011

Decision / décision

36575/08

RADIN

29/03/2011

Decision / décision

54771/07

RADOJICIC AND OTHERS

06/03/2012

Decision / décision

14738/08

ROZAJAC

29/03/2011

Decision / décision

5953/07

SABAREDZOVIC

29/03/2011

Decision / décision

43395/07

SKORIC

29/03/2011

Decision / décision

24305/08

SPASOVIC

08/03/2011

Decision / décision

41507/08

SUICA

09/11/2010

Decision / décision

26432/07

TRIFKOVIC

28/01/2011

Decision / décision

36151/08

VIDOJEVIC

27/09/2011

Decision / décision

5925/08

VLACIC

29/03/2011

Decision / décision

19378/07

VUJCIN-PAVLICIC

20/03/2012

Decision / décision

29083/08

ZILKIC

29/03/2011

Decision / décision

 

SLOVAK REPUBLIC / REPUBLIQUE SLOVAQUE

CM/ResDH(2012)…

13046/07

BAČO

31/08/2010

Decision / décision

32523/07

BANYKÓ

07/09/2010

Decision / décision

43298/07

BARTL

14/12/2010

Decision / décision

43795/07

BARTL

07/09/2010

Decision / décision

64004/09

BARTL

14/06/2011

Decision / décision

45072/09

BARTL

14/06/2011

Decision / décision

62067/09

BOD

14/06/2011

Decision / décision

52200/07

BODNÁR

22/06/2010

Decision / décision

29102/09

BRLJEVICOVA

22/11/2011

Decision / décision

27780/10

CAPCIKOVA

06/03/2012

Decision / décision

34320/09

DMF a.s.

20/09/2011

Decision / décision

32171/10

DRAHULA

14/12/2010

Decision / décision

22573/09

FIGMIKOVA

28/06/2011

Decision / décision

23292/10

FRANKOVA

28/06/2011

Decision / décision

16691/10

FRKOVA

20/09/2011

Decision / décision

42397/10

GABCOVA

11/10/2011

Decision / décision

49236/07

HAMMEL

11/10/2011

Decision / décision

34095/08

HARNÓC

05/10/2010

Decision / décision

28942/07

HORVÁTH

29/06/2010

Decision / décision

22973/10

HRBIK

27/03/2012

Decision / décision

47381/08

HRUŠKOVÁ

05/10/2010

Decision / décision

17727/10

HUSOVSKÝ

07/12/2010

Decision / décision

12805/10

HUTÁROVÁ

07/12/2010

Decision / décision

73947/10

KAKAS

28/06/2011

Decision / décision

9237/07

KENDERA AND KENDEROVÁ

08/06/2010

Decision / décision

3377/09

KICINOVA

14/12/2010

Decision / décision

64091/09

KLISKY

28/06/2011

Decision / décision

10482/09

KOLESAROVA AND OTHERS

08/03/2011

Decision / décision

54136/08

KOMANICKÝ

05/10/2010

Decision / décision

50028/09

KOMPAN AND OTHERS

28/06/2011

Decision / décision

23279/10

KONKOLOVSKA

28/06/2011

Decision / décision

9355/07

KOŠARKO

08/06/2010

Decision / décision

9746/07

KOŠARKOVÁ

08/06/2010

Decision / décision

63946/09

KURUCOVA AND OTHERS

20/09/2011

Decision / décision

69587/10

MAKSIM

11/10/2011

Decision / décision

51066/09

MATI AND OTHERS

10/01/2012

Decision / décision

42992/10

MISKOVIC

28/06/2011

Decision / décision

5970/08

MÜLLEROVÁ AND OTHERS

22/06/2010

Decision / décision

21647/09

OBŠITOŠOVÁ

07/09/2010

Decision / décision

15876/10

OLEJARNIK

11/10/2011

Decision / décision

50568/08

OLIJAS

25/01/2011

Decision / décision

58135/09

OLLAREK

07/09/2010

Decision / décision

23271/10

SCHREIBEROVA

28/06/2011

Decision / décision

47881/09

SLIVKA

07/09/2010

Decision / décision

37610/08

ŠTRBOVÁ

28/09/2010

Decision / décision

23265/10

SUHAJ

28/06/2011

Decision / décision

40502/09

TELOVÝCHOVNÁ JEDNOTA VSŽ KOŠICE

28/06/2011

Decision / décision

6550/10

TELOVÝCHOVNÁ JEDNOTA VSŽ KOŠICE

28/06/2011

Decision / décision

10336/10

TELOVÝCHOVNÁ JEDNOTA VSŽ KOŠICE

28/06/2011

Decision / décision

66684/10

TELOVÝCHOVNÁ JEDNOTA VSŽ KOŠICE

28/06/2011

Decision / décision

45108/08

TOMKO

20/09/2011

Decision / décision

3728/09

VARGA

20/09/2011

Decision / décision

1817/07

ZIEGLER

30/11/2010

Decision / décision

20670/10

ZIMAN

18/10/2010

Decision / décision

 

SLOVENIA / SLOVENIE

CM/ResDH(2012)…

3248/07

DREO

05/10/2010

Decision / décision

8441/06

PETEK

02/11/2010

Decision / décision

36175/06

RUSJAN

23/11/2010

Decision / décision

9750/05

SAGAJ

05/10/2010

Decision / décision

20844/03

TRNOVSEK

01/06/2010

Decision / décision

 

SWITZERLAND / SUISSE

CM/ResDH(2012)…

42034/04

EMRE

22/05/2008

22/08/2008

5056/10

EMRE No. 2

11/10/2011

11/01/2011

CM/ResDH(2012)…

16188/07

KHELILI

18/10/2011

08/03/2012

 

“THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA” /

“L'EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE”

CM/ResDH(2012)…

21354/05

BELJA

02/11/2010

Decision / décision

31708/07

BOSILKOVA

06/12/2011

Decision / décision

29725/07

DAVCEVA

18/01/2011

Decision / décision

11792/07

DIMOV

06/12/2011

Decision / décision

22612/07

EFTIMOVSKA

18/01/2011

Decision / décision

22231/07

FIDANOVSKA

06/12/2011

Decision / décision

25190/07

GADZOV AND GICEV

15/03/2011

Decision / décision

6233/08

GLIGOROV

16/11/2010

Decision / décision

35621/04

HASAN-OZGUN

06/12/2011

Decision / décision

31114/07

JANA RISTOVA AND OTHERS

06/12/2011

Decision / décision

24379/07

JANAKIEV

15/03/2011

Decision / décision

31169/07

JANEV

18/01/2011

Decision / décision

34190/07

JANEVSKA No. 1

21/09/2010

Decision / décision

11086/07

JONCEVSKA

15/11/2011

Decision / décision

29880/07

JOVANOVA AND OTHERS

13/03/2012

Decision / décision

20212/11

JOVANOVA

13/03/2012

Decision / décision

47210/06

KITANOVSKI

21/09/2010

Decision / décision

6438/07

MALCEVA

06/12/2011

Decision / décision

25136/07

MILANOV

18/01/2011

Decision / décision

30760/05

MITEVSKA-AVRAMOVA

15/11/2011

Decision / décision

53445/07

MITEVSKI

15/03/2011

Decision / décision

31863/07

NAKOV

21/09/2010

Decision / décision

31697/07

NIKOLOVSKA AND OTHERS

18/01/2011

Decision / décision

22793/07+

NIKOLOVSKA AND OTHERS

21/09/2010

Decision / décision

17410/07

PETRUSEV

06/12/2011

Decision / décision

25175/07

RIBARSKI AND OTHERS

15/03/2011

Decision / décision

15891/07

SABANSKI

18/01/2011

Decision / décision

25677/07

STOJANOV AND OTHERS

15/03/2011

Decision / décision

27254/07+

RISTOVA AND OTHERS

16/11/2010

Decision / décision

24136/05

TOPUZOVI

18/01/2011

Decision / décision

27240/07

TRAJČEVSKI

02/11/2010

Decision / décision

6235/08

VASILEV

15/03/2011

Decision / décision

6225/08

VASILEV

16/11/2010

Decision / décision

22719/07

VELKOV

15/11/2011

Decision / décision

29493/05

VILA AND OTHERS

12/04/2011

Decision / décision

44562/06

VRETOVSKI AND OTHERS

31/01/2011

Decision / décision

45999/07

ZEPCESKA

15/11/2011

Decision / décision

 

TURKEY / TURQUIE

CM/ResDH(2012)…

60856/00

EREN MÜRSEL

07/02/2006

03/07/2006

CM/ResDH(2012)…

14771/10

KEMAL ACAR

30/08/2011

Decision / décision

44791/07

ADAMAN

27/09/2011

Decision / décision

38927/09

EVRIM AKGOZ

30/08/2011

Decision / décision

597/08

ARPACI

13/12/2011

Decision / décision

1331/08

ASLAN

30/08/2011

Decision / décision

23477/08

AVCI

15/11/2011

Decision / décision

26854/08

BABAYIGIT AND OTHERS

13/12/2011

Decision / décision

5806/08

BABAYIGIT

30/08/2011

Decision / décision

8361/07

ISKENDER BAYHAN

30/08/2011

Decision / décision

56524/09

BAYRAM

27/09/2011

Decision / décision

17579/05

BAYTAP

09/11/2010

Decision / décision

38657/06

BINGÖL

01/06/2010

Decision / décision

22521/06

BOZAN KAYA

15/11/2011

Decision / décision

56520/09

BULUT

27/09/2011

Decision / décision

9542/06

CAGDAVUL AND OTHERS

27/09/2011

Decision / décision

27658/08

CANDOGAN

15/11/2011

Decision / décision

19430/05

CEMAL SUNBUL AND OTHERS

05/07/2011

Decision / décision

3798/10

CEVIKBAY

05/07/2011

Decision / décision

50451/09

CIMEN

29/11/2011

Decision / décision

23284/08

DOGAN

15/11/2011

Decision / décision

42777/07

EKINCI

21/06/2011

Decision / décision

40665/05

EL

27/09/2011

Decision / décision

24544/08

EMRE

29/11/2011

Decision / décision

24906/07

GULECYUZ AND KUTLULAR

30/08/2011

Decision / décision

31388/09

HALICI

21/06/2011

Decision / décision

21280/05

INANC AND OTHERS

10/01/2012

Decision / décision

43699/05

İPEKYÜZ

09/11/2010

Decision / décision

28719/07

KARADAG

10/01/2012

Decision / décision

23776/08

SINAN KAYA AND OTHERS

30/08/2011

Decision / décision

34451/08

KAYNAK

05/07/2011

Decision / décision

10159/06

KESKINOZ

27/09/2011

Decision / décision

8343/08

KILIC

30/08/2011

Decision / décision

4868/08

MEHMET BESIR KIZILAY

15/11/2011

Decision / décision

19466/09

KOKSAL

13/09/2011

Decision / décision

2079/09

KOLAY

27/09/2011

Decision / décision

44026/09

KORKMAZ

21/06/2011

Decision / décision

27559/06

MORANER

13/12/2011

Decision / décision

22501/06

MUSTAFA KAYA

15/11/2011

Decision / décision

18330/07

FIRAT NART

13/12/2011

Decision / décision

26113/05

OZHAN

10/01/2012

Decision / décision

3544/08

BEKIR OZKAHRAMAN

15/11/2011

Decision / décision

61041/08

OZKORKMAZ

27/09/2011

Decision / décision

30662/09

SARITAS

27/09/2011

Decision / décision

846/07

SAYAN

27/09/2011

Decision / décision

46643/09

SEYDI SIMSEK

27/09/2011

Decision / décision

16338/08

SORLI AND DELIBAS

15/11/2011

Decision / décision

3786/06

TEKIN

06/07/2010

Decision / décision

30681/08

TOLUN

15/11/2011

Decision / décision

26264/06

TOREN AND OTHERS

13/12/2011

Decision / décision

44801/08

UGUZ

15/11/2011

Decision / décision

17902/09

UVESOGLU

13/12/2011

Decision / décision

4817/08

VELI UYGUN

15/11/2011

Decision / décision

5370/08

UYGUN

15/11/2011

Decision / décision

6834/08

UYGUN

15/11/2011

Decision / décision

41095/08

YILDIRIM

31/01/2012

Decision / décision

37161/05

ZUĞURLI

06/07/2010

Decision / décision

 

UNITED KINGDOM / ROYAUME-UNI

CM/ResDH(2012)…

37341/06

KAY AND OTHERS

21/09/2010

21/12/2010

CM/ResDH(2012)…

19009/04

MCCANN

13/05/2008

13/08/2008

APPENDICES

Appendix 1: List of all the cases for which an action plan / action report has been received since the last meeting

Appendix 2: List of cases paid

1 This application was lodged against Italy and Albania but the European Court found no violation in respect of Italy.

2 Ryazan, Kostroma, Arkhangelsk, St Petersburg

3 See for instance the Report on human rights in the Russian Federation for 2011 of the Ombudsman of the Russian Federation.

4 See e.g. Soliyev against Russian Federation (No. 62400/10), judgment of 5 June 2012, §§ 57-58.

5 See lastly Ergashev against Russian Federation (No. 12106/09), judgment of 20 December 2011, final on 4June 2012, § 157.

6 This seems to be the case for certain suspects in the case of Sadykov against the Russian Federation.

7 Seddar Guzel against Turkey judgement of 15 March 2011, final on 15 June 20111, §§ 42-44; Paduret against Moldova, judgment of 5 January 2010, final on 5 April 2010, §73 with other references.

8 “States should support, by all possible means, the investigation of serious human rights violations and the prosecution of alleged perpetrators. Legitimate restrictions and limitations on investigations and prosecutions should be restricted to the minimum necessary to achieve their aim” (adopted by the Committee of Ministers on 30 March 2011 at the 1110th meeting of the Ministers’ Deputies)

9 Some international instruments go even further indicating that “prescription - of prosecution or penalty - in criminal cases shall not run for such period as no effective remedy is available”. See Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, adopted by the Commission on Human Rights of the United Nations (E/CN.4/Sub.2/1997/20/Rev.1, annex II).

10 As set out in paragraph 10 of document CM/Inf/DH(2010)45 final, as approved by the Deputies at their 1100th meeting (December 2010) (DH) (item e) the Deputies decided that “the indicators for cases to be examined under the enhanced supervision procedure would be as follows:

    - judgments requiring urgent individual measures;
    - pilot judgments;
    - judgments disclosing major structural and/or complex problems as identified by the Court and/or the Committee of Ministers;
    - interstate cases.

In addition, the Committee of Ministers may decide to examine any case under the enhanced procedure following an initiative of a member state or the Secretariat. The request may be made at any stage of the supervision procedure. Both member states and the Secretariat should be mindful of the selected indicators when requesting a case be examined under the enhanced procedure.”

11 For each of the cases listed here, the relevant indicator, as set out in footnote above, is indicated.

12 For each of the cases set out in this section, the reasons for proposing a change of classification are indicated (See paragraphs 24-26 of document CM/Inf/DH(2010)37 as reproduced in paragraph 20 of document CM/Inf/DH(2010)45 final).



 Top

 

  Related Documents
 
   Meetings
 
   Other documents