Ministers’ Deputies

Annotated order of Business and decisions adopted

CM/Del/Dec(2012)1157 10 December 2012



1157th Meeting (DH), 4-6 December 2012



CONTENTS

LIST OF PARTICIPANTS 3
A. General items 5
B. Examination of cases – Proposals from the Chair 7
C. Classification of cases 98
D. Supervision of payment of the just satisfaction 99
E. Action plans 100
F. Adoption of final resolutions – list of cases 101
APPENDICES 105

LIST OF PARTICIPANTS

The 1157th meeting of the Ministers’ Deputies opened on 4 December 2012 at 10.00 a.m. under the chairmanship of Mr Armen PAPIKYAN, Deputy for the Minister for Foreign Affairs of Armenia (in red, invited experts from the capitals).

PRESENT

ALBANIA

Mr F. Peni

Mr R. Hoxha

Ms L. Mandija

ANDORRA

Mr A. Jordi

Ms F. Aleix Lartigue

ARMENIA

Mr A. Papikyan, Chairperson

Mr S. Kartashyan

AUSTRIA

Mr S. Rutkowski

AZERBAIJAN

Mr J. Mirzayev

BELGIUM

Mr A. Cools

Ms M. Janssens

BOSNIA AND HERZEGOVINA

Mr A. Săhović

Ms L. Ljubic-Lepine

Mr B. Babić

Ms B. Skalonjic

BULGARIA

Mr A. Tehov

Mr A. Ananiev

CROATIA

Ms A. Djamić

Mr I. Mintas

Ms M. Bašić

CYPRUS

Ms T. Constantinidou

Mr S. Hatziyiannis

Mr T. Pittakis

Lord Lester of Herne Hill QC

Ms S. Joannides

Mr G. Ioannides

CZECH REPUBLIC

Mr M. Bouček

Mr J. Nantl

Mr J. Stárek

Mr V. Schorm

DENMARK

Mr C. von Barnekow

ESTONIA

Mr P. Pedak

FINLAND

Mr P. Hyvönen

Ms T. Leikas-Botta

FRANCE

Ms M. Bilocq

GEORGIA

Mr I. Giviashvili

GERMANY

Mr J. Holzenberger

GREECE

Ms M. Solomou

Mr T. Zafeirakos

Ms O. Patsopoulou

Mr V. Kyriazopoulos

HUNGARY

Mr F. Robák

Ms A. Tóth-Ferenci

ICELAND

-

IRELAND

Mr P. Gunning

Mr R. Scannell

Mr D. Chiheb

ITALY

Mr M. Jacoangeli

Mr G. Cavagna

Ms P. Accardo

LATVIA

Mr. M. Klīve

Ms S. Kaulina

LIECHTENSTEIN

Mr D. Ospelt

LITHUANIA

Ms U. Matulevičiené

LUXEMBOURG

Ms A. Kayser-Attuil

MALTA

Mr J. Licari

Mr A. Ghigo

REPUBLIC OF MOLDOVA

Ms T. Pârvu

Mr S. Mihov

Ms L. Ilieş

Mr L. Apostol

Ms C. Calugaru

MONACO

-

MONTENEGRO

Ms D. Markovic

NETHERLANDS

Mr J. Rademaker

NORWAY

Mr P. Wille

Mr J. Høvik

POLAND

Ms E. Suchożebrska

Ms K. Bralczyk

Ms M. Borowska

PORTUGAL

Mr P. Neves Pocinho

Mr L. Sequeira

ROMANIA

Mr S. Stoian

Mr D. Dumitrache

Ms I. Cambrea

RUSSIAN FEDERATION

Mr I. Podolskiy

Mr V. Ermakov

Ms N. Zyabkina

Mr N. Mikhaylov

Mr S. Kovpak

Mr P. Ulturgashev

Ms O. Ocheretyanaya

Ms V. Lambina

Mr G. Matyushkin

SAN MARINO

Ms B. Para

SERBIA

Ms V. Radonjic-Rakic

Ms V. Rodić

SLOVAK REPUBLIC

Mr M. Babicz

Ms K. Čahojová

SLOVENIA

Mr D. Bergant

Ms B. Sušnik

Mr L. Bembič

Ms N. Ban Zlatev

Ms L. Stefin

SPAIN

Mr L. Tarin Martin

SWEDEN

Mr C.-H. Ehrenkrona

Ms A. Lundkvist

Ms S. Finnigan

SWITZERLAND

Mr B. Gubler

Mr U. Beer

“THE FORMER YUGOSLAV REPUBLIC

OF MACEDONIA”

Mr P. Pop-Arsov

Mr Z. Barbutov

TURKEY

Mr R.E. Soysal

Ms N. Erdem-Ari

Mr U. Acar

Mls E. Demircan

Mr Y. Yeşilada

Mr G. Seker

Ms S. Karabacak

Ms G. Plümer Küçük

Mr S. Dalyan

Mr N. Bekri

UKRAINE

Ms O. Pasheniuk

Ms Z. Lukianenko

Ms D. Pistriak

Ms O. Davydchuk

UNITED KINGDOM

Mr M. Johnson

Ms K. Jones

Mr S. Kelly

*

* *

EUROPEAN UNION

Ms L. Pavan-Woolfe

Mr G.C. Bruno

*

* *

A. General items

Item a.

Agenda and approbation of the Order of Business

Decisions

The Deputies

1. agreed to add the case of A., B. and C. against Ireland, the Garabayev group against the Russian Federation and the Grudić case against Serbia;

2. approved the order of business accordingly revised.

* * *

Item b.

Preparation of the next Human Rights meeting – 1164th meeting (March 2013)

Decisions

The Deputies took note of the preliminary indicative list of cases to be included in the draft Order of Business for the 1164th meeting (March 2013) (DH), it being understood that a more detailed indicative list, together with the time-table for the preparation of the 1164th meeting, will be issued on 19 December 2012:

Application / Requête

Case / Affaire

Judgment of / arrêt du

Final on / définitif le

ALBANIA / ALBANIE

44023/02

CAKA GROUP / GROUPE CAKA

08/12/2009

08/03/2010

BELGIUM AND GREECE / BELGIQUE ET GRECE

30696/09

M.S.S.

21/01/2011

Grand Chamber

RUSSIAN FEDERATION / FEDERATION DE RUSSIE

4916/07

ALEKSEYEV

21/10/2010

11/04/2011

* * *

Item c.

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

Preliminary draft annual report 2012

(DH-DD(2012)1110)

Decisions

The Deputies

1. took note of the proposals appearing in DH-DD(2012)1110 and in particular of the appended road-map containing the deadlines which need to be observed in order for the final draft to be available for the 1164th meeting (March 2013) (DH);

2. decided to examine the final draft annual report at their 1164th meeting with a view to its adoption and subsequent publication in accordance with modalities yet to be agreed.

* * *

Item d.

Measures to improve the execution of the judgments and decisions of the European Court of Human Rights

CM/Inf/DH(2012)41

Decisions

The Deputies

1. took note with interest of document CM/Inf/DH(2012)41 prepared by the Secretariat on “Measures to improve the execution of the judgments and decisions of the European Court of Human Rights - Tools available to the Committee of Ministers to supervise the execution of judgments and possible developments of these”;

2. decided to continue the consideration of the different practical proposals made to improve the visibility, transparency and efficiency of the supervision process within the framework of the work carried out by the Ad hoc Working Party on Reform of the Human Rights Convention system (GT-REF-ECHR) with a view to securing implementation of measures agreed, where possible for the 1164th meeting (March 2013) (DH);

3. invited the Chair to inform the Steering Committee for Human Rights (CDDH) about the contents of their discussion.

* * *

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

13

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 1150th DH meeting, inviting the authorities in particular to update the Committee on the next set of measures that will be taken with a view to the execution of the final judicial decisions already identified; and to indicate when they will be in a position to draw up a definitive list of the final administrative decisions to be executed.

1150th meeting

September 2012

2

16

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 (in particular with respect to the cooperation with the Venice Commission regarding the elaboration of the Law on defamation) following the decision adopted at the 1150th meeting

1150th meeting

September 2012

3

19

M.S.

BELGIUM

30/04/2012

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

Follow-up to the decisions adopted at the 1144th and 1150th DH meetings, 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”.

1150th meeting

September 2012

4

21

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 1150th meeting.

1150th meeting

September 2012

5

24

KARANOVIĆ GROUP

BOSNIA AND HERZEGOVINA

20/02/2008

Discrimination in the enjoyment of pension rights

Assessment of the general measures adopted and possible closure of these cases

1128th meeting

December 2011

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

6

27

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 remedies adopted or foreseen by the Bulgarian authorities in response to the pilot judgments Dimitrov and Hamanov and Finger and of the measures taken to reduce the length of judicial proceedings

1150th meeting

September 2012

7

30

NACHOVA AND OTHERS GROUP

BULGARIA

06/07/2005

Unjustified and/or disproportionate use of fire-arms by the police or the military police

Assessment of the new legal framework governing the use of fire-arms by the police and identification of outstanding questions

1115th meeting

June 2011

8

33

D.H. AND OTHERS

CZECH REPUBLIC

13/11/2007

Discrimination in the enjoyment of the applicants’ right to education on account of their Roma origin

Examination of status of execution, in accordance with the decision adopted in June 2012 in the light of the consolidated action plan.

1144th meeting

June 2012

9

36

ENUKIDZE AND GIRGVLIANI

GEORGIA

26/07/2011

Violation of the procedural limb of Article 2 of the Convention on account of lack of an effective investigation into the death of the applicant's son. Also violation of Article 38.

Consolidated action plan awaited by 25 November 2012 following the request by the authorities for an extension of the deadline for its submission. Take note of the consolidated action plan that will be submitted and instruct the Secretariat to prepare an assessment for the March meeting.

First examination

10

38

BEKIR-OUSTA AND OTHERS GROUP

GREECE

11/01/2008

Violation of the right to freedom of association

Follow up to the decision adopted at the 1144th meeting regarding individual and general measures

1144th meeting

June 2012

11

41

MAKARATZIS GROUP

GREECE

20/12/2004

Group of cases concerning in particular ill treatment by police and absence of effective investigations in this respect

Assessment of consolidated information provided on individual and general measures on the basis of a memorandum.

1100th meeting (page 140)

December 2010

12

43

A. B. AND C.

IRELAND

16/12/2010

Absence of any legislative or regulatory regime providing access to lawful abortion when the mother's life is at risk

Assessment of the state of progress in taking general measures (updated Action plan expected on 30 November 2012).

1136th meeting

March 2012

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

13

45

HIRSI JAMAA AND OTHERS

ITALY

23/02/2011

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

In respect of the individual measures, to recall the decision from the 1150th DH meeting and urge the authorities to obtain the information and assurances required. In depth assessment of the information submitted on the general measures will be presented at the 1164th meeting (March 2013).

1150th meeting

September 2012

14

47

GROUP OF LENGTH OF JUDICIAL PROCEEDINGS AND PINTO REMEDY

CETERONI GROUP

LUORDO GROUP

MOSTACCIUOLO GROUP

GAGLIONE AND OTHERS

ITALY

15/11/1996

17/10/03

29/03/2006

20/06/2011

Excessive length of judicial proceedings; insufficient amount and delay in payment of the awards made in the context of Pinto remedy; excessive length of the Pinto proceedings (violations of Articles 6, §1 and/or 1 of Protocol No. 1)

Follow-up to the decision taken at the 1144th meeting and assessment of the recent amendments brought to the Pinto law (see (DD-DH(2012)806F) and DD-DH(2012)1001F).

1144th meeting

June 2012

15

54

STRĂIN AND OTHERS

ROMANIA

30/11/2005

Restitution/ compensation for nationalised property, pilot judgment, extended deadline to expire in April 2013

Assessment of the situation in the light of the information on general measures submitted by the authorities on 15 October 2012.

1144th meeting

June 2012

16

56

ASSOCIATION “21 DECEMBRE 1989” GROUP

ROMANIA

28/11/2011

Lack of an effective investigation into the violent crackdown of 1989 anti-government protests (procedural violation of Article 2); lack of safeguards in the legislation applicable to secret surveillance measures (violation of Article 8).

Assessment of the information provided by the authorities in the revised action plan of 19 October 2012 (DH-DD(2012)1000F) on the progress of the criminal investigation; request for additional information as regards the general measures under adoption in response to the Court’s findings under Article 8.

1136th meeting

March 2012

17

59

PREDICA

ROMANIA

07/09/2011

Death of the applicant’s son occurred under the state’s responsibility (in prison) and ineffectiveness of the investigation into the circumstances of the death (substantial and procedural violations of Article 2); lack of an effective remedy allowing the next-of-kin to obtain compensation, in the absence of an effective criminal investigation (violation of Article 13).

Assessment in particular of the progress in the criminal investigation into the circumstances of the death of the applicant’s son, in the light of the revised action plan presented by the authorities on the 24 October 2012 (DH-DD(2012)1005E); request for additional information as regards the general measures.

First examination

18

61

ALIM

RUSSIAN FEDERATION

27/12/2011

The Court found that there would be a violation of Article 8 if the applicant, a Cameroonian national and father of two Russian children, was removed from Russia. His removal was ordered in 2007 by a domestic court for breaching residence regulations for foreigners.

Proposal to transfer this case from standard procedure to enhanced procedure. According to the information provided on 5/10/2012, all decisions concerning the applicant’s removal were quashed. However, no information has been provided on whether the applicant’s immigration status was regularised. Therefore it seems that the applicant continues to face a risk of being removed from Russia in breach of Article 8 of the Convention.

First examination

19

62

LIU No. 2 GROUP

RUSSIAN FEDERATION

08/03/2012

Violation of the applicants’ right to family life on account of the authorities’ refusal to grant the first applicant a residence permit based on national security considerations and of his subsequent administrative removal to China which were not attended by adequate procedural guarantees and were not “necessary in a democratic society” (Article 8).

No information has been provided on the first applicant’s current situation, in particular on whether he can come back to Russia. An action plan on general measures should also be provided.

Proposal to transfer the case of Liu and Liu from standard procedure to enhanced procedure.

First examination

20

65

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)

Preliminary assessment of the action plan submitted by the Russian authorities on 10/10/2012, i.e. within the time-limits set by the Court in its pilot judgment

1150th meeting

September 2012

21

68

GARABAYEV GROUP

RUSSIAN FEDERATION

30/01/2008

Different violations related to extradition (Articles 3, 5 and 13); kidnapping and illegal transfer to Tajikistan of the applicant whose extradition had officially been refused in the Iskandarov case

Examination of general measures taken to prevent new similar violations to that found in the Iskandarov judgment in the light of the information according to which a new incident of this kind might have recently taken place

1150th meeting

September 2012

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

22

71

EVT COMPANY GROUP

SERBIA

21/09/07

Non-enforcement of final court or administrative decisions

Assessment of the state of progress in taking general measures following the decision adopted at the 1120th meeting while stressing the importance of resolving the issue of non-enforcement of decisions rendered against socially-owned companies

1120th meeting

September 2011

23

74

GRUDIĆ

SERBIA

24/09/2012

Violation of the applicants’ right to peaceful enjoyment of their possession on account of the fact that the payment of their pensions earned in Kosovo* was suspended for more than a decade in breach of the relevant domestic law

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

New judgment

24

76

LABSI

SLOVAK REPUBLIC

24/09/2012

Expulsion of the applicant to Algeria where he faced a real risk of treatment contrary to Article 3. Violation of Article 34 as the expulsion was despite a Rule 39 indication from the European Court, and lack of an effective remedy in this respect - violation Article 13

Examination of the action plan provided by the authorities, which includes information on the current status of the applicant.

New judgment

25

78

CYPRUS

VARNAVA

TURKEY

10/05/2001

18/09/2009

14 violations in relation to the situation in the northern part of Cyprus

Lack of effective investigation on the fate of nine Greek Cypriot who disappeared during the military operations by Turkey in Cyprus in 1974

Continuation of debate from 1144th meeting, in accordance with the decision adopted at that meeting.

Examination of the issues raised in the Varnava case in the framework of the discussions on the questions regarding missing persons in the case of Cyprus against Turkey

1144th meeting

June 2012

* All reference to Kosovo, whether the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

26

83

HULKI GUNES GROUP

TURKEY

19/09/2003

Unfairness of criminal procedures

State of progress in taking legislative measures (follow-up to the questions raised at the 1150th meeting)

1150th meeting

September 2012

27

85

ULKE GROUP

TURKEY

24/04/2006

Repetitive convictions and prosecutions for having refused to carry out compulsory military service (violations of Articles 3 and/or 9 of the Convention)

Assessment on the information provided on the applicants’ current situation and necessity to stress the importance of adopting general measures

1150th meeting

September 2012

28

88

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

Follow-up to the questions raised at the 1150th meeting

1150th meeting

September 2012

29

91

GONGADZE

UKRAINE

08/02/2006

Failure to protect the life of a journalist known to be critical of the authorities; ineffective investigation into his abduction and death

Taking stock of recent developments in the continuing investigations and related proceedings before the domestic courts.

1115e meeting

June 2011

30

94

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 1150th DH meeting. Examination of the status of execution for this group of cases, the deadline for the authorities to introduce legislative proposals expired on 23 November 2012.

1150th meeting

September 2012

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

Updated Action Plan (individual measures, Gjonbocari case) DH-DD(2012)1031E

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

Updated Action Plan (individual measures, Çaush Driza case) DH-DD(2012)1004revE

Action plan (Gjyli case) DH-DD(2012)1090

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

Communication from the authorities DH-DD(2012)785

Communication from the authorities DH-DD(2012)1091

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

Decision adopted at the 1150th 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 Gjonboçari 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, 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 have confirmed that this had been done. On 19/10/2012 the Albanian Ombudsman provided information in Albanian indicating that is not the case. Bilateral contacts are under way on this issue. In addition, 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.

- in the case of Caush Driza, the Court noted that the applicant was entitled to compensation in kind pursuant to a final national decision (§ 101). By a decision of 31/07/2012, the Agency for restitution and compensation of properties awarded the applicant compensation in kind, under conditions that appear to be accepted by the applicant. Confirmation is awaited on the question of whether a final certificate of ownership must still be issued to him.

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

All 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: The measures envisaged by the Albanian authorities are set out in the context of an overall strategy concerning property rights for the period 2012-2020, which was adopted on 27 June 2012 by the Albanian Council of Ministers, and whose scope far exceeds the issue involved in this group of cases (see DH-DD(2011)316 and DH-DD(2012)729). At the 1144th meeting (June 2012), the Committee of Ministers stressed how "important it is, in the context of such a broad project, that the authorities keep in mind their legal obligation to avoid new, similar violations, in particular by executing final domestic (judicial and administrative) decisions and by putting in place an effective remedy in this field”. It "insisted on the necessity for the Albanian authorities to rapidly make concrete progress in this respect and in particular 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 - of their own motion - the decisions at issue" by adopting a step by step approach.

By a letter of 04.09.2012 (DH-DD(2012)785), the Albanian authorities announced the first steps taken in this direction. In particular, they indicated that a law was passed establishing the criteria upon which the new land value map would be adopted; that a list of 639 final court decisions issued between 1995 and 2011 had been established and that a provisional list of administrative decisions had been compiled.

In addition, the authorities announced that the transitional compensation mechanism will continue to be applied in 2012 on the basis of the new land value map which is expected to be adopted soon (see submissions of 19/11/2012 (DH-DD(2012)1091).

Finally, the authorities have indicated that they intend to amend the Code of Civil Proceedings and pass a special law to put in place an effective remedy within the meaning of Article 13 of the Convention. (see pages 3-4 of the DH-DD(2012)1090 - Action plan, Gjyli case). Bilateral contacts are under way in order to clarify this issue.

At the 1150th meeting (September 2012) (DH), the Deputies " invited the authorities to update the Committee on the next set of measures that will be taken with a view to the execution of [the] decisions [already identified]" and " to indicate when they [would] be in a position to draw up a definitive list of the final administrative decisions to be executed”. "[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], [the Deputies] insisted strongly on the importance of taking into account the Court’s findings in respect of Article 13 (effective remedy). [They] “expressed their concern about the absence of a concrete result at this stage, where the first judgment of this group has been final for more than five years" and noted that on 31 July 2012 the Court delivered a pilot judgment concerning these issues, Manushaqe Puto and others against Albania (judgment not yet final on the date of publication of this draft order of business).

The general measures required under the case of Gjonbocari to remedy the excessive length of civil proceedings and the lack of an effective remedy are examined in the context of the case of Marini (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

1157th Meeting – Notes

The authorities envisage putting in place, in 2013, an effective mechanism for financial compensation and compensation in kind. In the previous examinations of this group of cases, the Committee has identified a number of steps crucial for success and has underlined the importance in this context of also to taking into account the findings of the Court in respect of Article 13.

The Albanian authorities have started to implement certain measures to complete these different steps, however, progress remains limited. To date, the authorities lack accurate and reliable information as regards the overall number of final judicial and administrative decisions recognising property rights and awarding compensation. No response has been brought to the requests made by the Committee in its last decision concerning first the effective execution of final judicial decisions identified and, secondly, the timetable for the establishment of a list of final administrative decisions. The land value map (already amended several times in the past) is still not finalised. The cost of executing the final decisions and the resources needed are not established.

The deadline of 2017 fixed by the authorities to finalise the in kind compensation fund, is clearly a barrier for establishing an effective compensation mechanism in 2013 as indicated.

Decisions

The Deputies

1. underlined again the urgent need to take all necessary general measures in order to effectively guarantee the right to compensation recognised by final domestic decisions;

2. took note of the information provided by the Albanian authorities on the recent measures undertaken for the implementation of their crosscutting strategy; deplored however the lack of progress in the adoption of the measures identified by the Committee as essential and noted in this respect that the pilot judgment delivered by the European Court in the matter (not yet final) fixes a deadline of eighteen months for the Albanian authorities to put in place an effective compensation mechanism;

3. reiterated therefore their requests addressed to the Albanian authorities at their 1144th meeting (June 2012):

- to establish the final list of all judicial and administrative decisions to be executed;

- to finalise the land value map;

- on the basis of these elements, to calculate the cost of the execution of the decisions, in order to be able to define the resources needed;

- to adopt the compensation mechanism that should take into account the findings of the Court made under Article 13 of the Convention;

- and at last, to execute of their own motion, without further delay, the decisions at issue;

4. given the urgency to progress concretely, invited the authorities to set deadlines that are realistic but also binding for each of those steps still pending ; also invited them to update the action plan for this group of cases, including the timetable thus fixed;

5. recalled that information is awaited on the individual measures still pending in the cases of Driza, Gjonbocari and Çaush Driza;

6. decided to take stock of the progress achieved in this group of cases at their 1164th meeting (March 2013) (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

Communication from Azerbaijan (general measures) (24/10/2012) DH-DD(2012)1002E

Communication from Azerbaijan DH-DD(2012)1077E

Joint statement by the Council of Europe Commissioner for Human Rights, the OSCE Representative on Freedom of the Media and the Vice-President of the European Commission “Enhancing freedom of expression in Azerbaijan” (7/11/2012)

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

Decision adopted at the 1150th 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.

In accordance with the information presented to the Committee on 18/09/2012, on 23-27 June 2012 a summer school for judges, prosecutors and defense lawyers was held in Baku. The summer school was devoted to the examination of the case law of the European Court of Human Rights regarding Articles 3,5,6,8,9,10 and 11 of the ECHR. The judgments in the cases Mahmudov and Agazade and Fatullayev have been discussed in detail within the framework of the seminars on Articles 6§2 and 10 of the Convention.

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

1) Legislative work on defamation

At their 1150th meeting (September 2012), the Deputies 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.

According to the information received by the authorities (DH-DD (2012)1002), the President of the Venice Commission, by letter of 2/10/2012, responded favourably to this request, indicating that the Commission was ready to assist the Azerbaijani authorities in drawing up this important piece of legislation, namely the law on defamation. By letter of 20/10/2012, the authorities informed the Venice Commission about the contact persons appointed to this effect. In their communication of 24/10/2012 for the attention of the Committee, the authorities indicated that they would keep the Committee informed of all the steps of this process including the precise calendar to be established in that respect. By letter of 19/11/2012 (DD-DH(2012)1077E), the authorities informed the Committee about the first meeting between the Secretariat of the Venice Commission and the contact persons for Azerbaijan that will be held in Strasbourg on 29 November 2012 with a view to agreeing on the modalities of this cooperation and on a road map.

2) measures envisaged to prevent arbitrary application of provisions of the criminal code addressed by the judgments of the Court and in particular examples of domestic court decisions demonstrating that the Convention standards on freedom of expression are applied by the Azerbaijani courts: Information was presented to the Committee on 18/09/2012. The Committee instructed the Secretariat to prepare an assessment (see below under “Notes”).

3) measures envisaged to prevent violations of Articles 6§1 and 6§2 similar to those found in the case of Fatullayev: during bilateral consultations in Baku (April 2012), the Office of the General Prosecutor indicated that they had studied the judgment 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). Updated information is awaited.

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

1157th meeting - Notes

According to the information provided (DH-DD(2012)837), during 2011-2012 there were no conviction on the basis of Articles 147 and 148 of the Criminal Code (defamation and insult). Two examples of domestic decisions were provided in English. The first judgment was issued by the Baku Court of Appeal (23/09/2011) and concerns the acquittal of a journalist pursued on the basis of Articles 147.1, 147.2 (defamation for having committed a serious crime) and 148 of the Criminal Code. The second judgment was delivered by the District Court of Narimanov (25/11/2010) and concerns the conviction of a journalist to a fine on the basis of Articles 147.1 and 148. From the examination of these two cases, it does not appear that the domestic courts apply the national legislation in accordance with the Convention standards as interpreted by the Court. Furthermore, these judgments do not allow to take a position on the arbitrary application (or not) of national legislation. In order to proceed to a detailed and thorough assessment, it would be useful to receive a wider and up-dated sample of related decisions as well as other measures envisaged in that respect.

Decisions

The Deputies

1. noted that a first meeting between the Venice Commission and the contact persons for Azerbaijan was held on 29 November 2012 on the preparation of the law on defamation and reiterated their call on the authorities to pursue this work speedily and in close co-operation also with the Secretariat and to keep the Committee regularly informed of all the steps of this process, including the precise calendar to be established in that respect;

2. reiterated also their call on the authorities to take the necessary measures, pending the preparation of this law, in order to ensure that the current legislation is applied in accordance with the Convention’s requirements;

3. invited the authorities to provide a wider sample of domestic decisions demonstrating that national legislation is not arbitrarily applied by Azerbaijani courts and that these courts apply such legislation in accordance with the Convention standards; within this context, invited the authorities to specify the measures envisaged for this purpose;

4. strongly hoped that updated information will be provided on 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.

BELGIUM

Application: 50012/08

Judgment final on: 30/04/2012

M.S. v. Belgium

Enhanced procedure: Urgent individual measures + complex problem

Reference texts:

Action plan DH-DD(2012)1080F

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

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

Decision adopted at the 1150th 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).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 with a view to his expulsion, although the authorities had concluded that it was not possible to expel the applicant to Iraq having regard to the risk that he might be subject 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). 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 were under way (DH-DD(2012)519F). At the 1144th and 1150th meetings, 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” and “noted that the Belgian authorities [were] 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”.

On 31 October 2012, the Belgian authorities provided an action plan (DH-DD(2012)1080). According to them, the Court’s judgment does not call Belgium to grant the applicant international protection today. It would not emerge from the information available to the Court when it delivered its judgment (§§ 110-111) that, since the applicant’s return to Iraq, he would currently face a risk of undergoing torture or inhuman or degrading treatment. The authorities underline that the above-mentioned communication from the applicant’s lawyer does not include any information in this respect and does not bring any element on the extent of the alleged persistent risk of ill-treatment for the applicant. They recall that since 2006 the applicant is subject to a 10 year interdiction to enter Belgium, decided on grounds of the threat the applicant represents for public order and national security.

General measures: According to the action plan (DH-DD(2012)1080), the authorities are currently reflecting on general measures that could be adopted following the findings of violations of Articles 3 and 5§1. They have also asked other member States for consultations. Concerning the violation of Article 5§4, the authorities indicate that it stemmed from errors made by the Prosecutor’s offices that intervened in this case and that the Board of Procurators General sent a note to the Prosecutor’s offices with a clarification aiming at avoiding the repetition of these errors.

Application

Case

Judgment of

Final on

50012/08

M.S.

31/01/2012

30/04/2012

1157th meeting - Notes

Concerning individual measures, the applicant’s present situation is uncertain. In view of the violation of Article 3, it is not the applicant’s task or his lawyer’s to demonstrate that he currently faces a risk of ill-treatment. On the contrary, it is the respondent State’s responsibility to provide as quickly as possible up-to-date elements making it possible to determine whether the applicant faces such a risk or not and, on this basis, if measures are necessary.

Concerning general measures, it would be useful to provide details on the time-frame in which the authorities foresee to complete their reflection on the measures following the findings of violations of Articles 3 and 5§1. The authorities’ explanations on the origin of the violation of Article 5§4 and of the measure taken to avoid its repetition, namely a note sent by the Board of Prosecutors General to the Prosecutor’s offices, can be noted. It would be useful to invite the authorities to provide a copy of the said note to the Committee, so that it can examine it.

Decisions

The Deputies

1. having examined the action plan provided by the Belgian authorities on 31 October 2012, took note of the fact that the Belgian authorities are currently seeking elements making it possible to determine whether the applicant effectively faces a risk of inhuman or degrading treatment in Iraq with a view to assessing, as appropriate, the advisability of adopting further measures;

2. concerning general measures, noted that the Belgian authorities are currently reflecting on general measures that could be adopted following the findings of violations of Articles 3 and 5§1, and invited them to provide details on the time-frame in which they foresee to complete this reflection;

3. as to the violation of Article 5§4, noted that the Belgian authorities had identified the source of the shortcoming found here and had taken a measure to avoid its repetition, namely a letter to the Board of Prosecutors General, and invited the authorities to inform them of the follow-up given to this letter.

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)

Decision adopted at the 1150th meeting

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: From the beginning of its examination of this case, the Committee of Ministers considered that the execution of this judgment would require a number of amendments to the Constitution of Bosnia and Herzegovina and to its electoral legislation. However, the authorities and political leaders of Bosnia and Herzegovina have failed on numerous occasions to reach a consensus on the amendments required despite the Committee’s repeated calls to that effect (see, in particular, Interim Resolution CM/ResDH(2011)291 adopted at the 1128th meeting (December 2011)).

As a last attempt to reach a consensus, the representatives of the executive authorities and main political parties reached an agreement on 27 June 2012 to present draft constitutional amendments to the Parliamentary Assembly by 31 August 2012 and to amend the Constitution by 30 November 2012.

At its 1147th meeting (July 2012-regular meeting), the Committee of Ministers took note of this agreement and encouraged the authorities to submit the amendments to the Council of Europe in good time before their submission to the Parliamentary Assembly for prior assessment of their compliance with the requirements of the judgment.

However, the draft constitutional amendments have not been presented to the Parliamentary Assembly by 31 August 2012 because the political stakeholders have again failed to reach a consensus.

In its decision adopted at the 1150th meeting (September 2012) the Committee noted with deep regret the fact that no consensus has been reached and reiterated its call on the executive authorities and main political leaders to amend the Constitution by 30 November 2012 at the latest. The Committee also instructed the Secretariat to prepare a second interim resolution for their consideration at their present meeting in case the Constitution is not amended by the above-mentioned date.

No information has been submitted as to whether or not the political stakeholders have reached a consensus at the time of issuing of the present document. It is recalled in this respect that in its decision adopted at the 1150th meeting, the Committee reiterated its 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 judgment.

Application

Case

Judgment of

Final on

27996/06

SEJDIĆ AND FINCI

22/12/2009

Grand Chamber

Decision

The Deputies adopted Interim Resolution CM/Res/DH(2012)233 as it appears in document CM/Del/Dec(2012)1157, Volume of Resolutions.

Interim Resolution CM/ResDH(2012)233
Execution of the judgment of the European Court of Human Rights

Sejdić and Finci against Bosnia and Herzegovina

(Application No. 27996/06, judgment of 22/12/2009 – Grand Chamber)

(Adopted by the Committee of Ministers on 6 December 2012

at the 1157th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”);

Having regard to the Grand Chamber judgment of the European Court of Human Rights (“the Court”) of 22 December 2009 in the case of Sejdić and Finci against Bosnia and Herzegovina transmitted to the Committee for supervision of its execution under Article 46 of the Convention;

Recalling that, from the beginning of its examination of this case, the Committee considered that the execution of this judgment would require a number of amendments to the Constitution of Bosnia and Herzegovina and to its electoral legislation;

Underlining that these amendments, by allowing all citizens of Bosnia and Herzegovina to run for elections, would enhance the functioning of democratic institutions in the country and citizens’ confidence in them;

Stressing the particular responsibility of the authorities and political leaders of Bosnia and Herzegovina in this respect, having regard also to the bearing that this matter has on Bosnia and Herzegovina’s prospect for European integration;

Noting with profound disappointment that, despite their latest commitment 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 executive authorities and political leaders of Bosnia and Herzegovina have, once again, failed to reach a consensus and to amend the Constitution;

Reiterating once again that, in becoming a member of the Council of Europe in 2002, Bosnia and Herzegovina undertook to “review within one year, with the assistance of the European Commission for Democracy through Law (Venice Commission), the electoral legislation in the light of Council of Europe standards, and to revise it where necessary”2;

Reiterating also the willingness of the Council of Europe to assist the authorities of Bosnia and Herzegovina in meeting this commitment;

Bearing in mind that in September 2012, Commissioner Štefan Füle and the Secretary General of the Council of Europe Thorbjørn Jagland noted in a joint statement with great disappointment that, despite their commitments, 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;

Stressing that reaching a political consensus is an indispensable condition for the amendment of the Constitution and the electoral legislation in order to ensure not only the execution of the present judgment but also full compliance of future elections with Convention requirements;

      FIRMLY RECALLS the obligation of Bosnia and Herzegovina under Article 46 of the Convention to abide by the judgment of the Court in the case of Sejdić and Finci;

      STRONGLY URGES the authorities and political leaders of Bosnia and Herzegovina to amend the Constitution and the electoral legislation and to bring them in conformity with the Convention requirements without any further delay;

      DECIDES to examine the present case at each of its “Human Rights” meeting until the political leaders and authorities of Bosnia and Herzegovina reach a consensus on the measures required for the execution of this judgment.

BOSNIA AND HERZEGOVINA

Application: 39462/03

Judgment final on: 20/02/2008

KARANOVIĆ GROUP v. Bosnia and Herzegovina

Enhanced procedure : Important structural and complex problem

Reference texts:

Information document CM/Inf/DH(2010)22

Communication from an NGO and reply of the government (Karanovic case) DH-DD(2011)118E

Action report (30/07/2012) DH-DD(2012)736E

Updated action plan DH-DD(2012)136E

Initial action plan DH-DD(2011)360E

Decision adopted at the 1128th meeting

Case description: The case of Karanović concerns the violation of the applicant's right of access to a court on account of failure to enforce a court decision which ordered the transfer of the applicant's pension entitlement from the Republika Srpska Pension Fund to the Federation of Bosnia and Herzegovina Pension Fund (violation of Article 6§1).

The case of Šekerović and Pašalić also concerns a violation of Article 6§1 on the above-mentioned ground as well as a violation of Article 1 of Protocol No. 1 to the Convention. In addition, this case concerns discrimination against the applicant Pašalić because she was subjected to differential treatment without any objective and reasonable justification in comparison to other pensioners in the enjoyment of her pension rights (Article 14 in conjunction with Article 1 Protocol No. 1).

According to the Court, the issues raised in both cases disclosed the existence of a shortcoming affecting a whole class of citizens and might trigger large number of potential applications. The Court therefore held that the respondent State must secure, within six months from the date on which the judgment became final, the amendment of the relevant legislation in order to render the applicants and others in similar situation eligible to apply, if they so wish, for the Federation Pension Funds (this deadline expired on 15 March 2012).

Status of execution: Individual measures: The pension rights of the applicant Karanović and the applicant Šekerović were transferred to the Federation Fund following the Court’s judgments. The applicant Pašalić withdrew her request of transfer indicating that the transfer would put her in a disadvantaged situation because she was receiving higher pension from the Republika Srpska Fund.

General measures: The authorities of Bosnia and Herzegovina indicated that the Pension and Disability Insurance Law needed to be amended in order to execute these judgments. The authorities therefore prepared legislative amendments after the judgment in the case of Šekerović and Pašalić became final. These amendments provided that persons who are in the same situation as the applicants could apply, if they so wish, to transfer their pension to the Federation Fund. On 15 May 2012 the Parliament of the Federation of Bosnia and Herzegovina adopted the legislative amendments, which entered into force on 28 June 2012. These amendments were published in the Official Gazette of the Federation of Bosnia and Herzegovina no. 55/12 of 27 June 2012.

Application

Case

Judgment of

Final on

39462/03

KARANOVIĆ

20/11/2007

20/02/2008

5920/04+

SEKEROVIC AND PASALIC

08/03/2011

15/09/2011

1157th meeting - Notes

Scope of the legislative measures taken: The amendments made to the Pension and Disability Insurance Law will make it possible for anyone who is in the same situation as the applicants (i.e. persons who were granted pensions in what is today the Federation before the war, who then moved to what is today the Republika Srpska during the war, and who, for that reason only, still receive the Republika Srpska pensions despite their return to the Federation after the war) to request the transfer of their pensions from the Republika Srpska Pension Fund to the Federation Pension Fund. It is noted that these legislative amendments constitute an appropriate response to the European Court’s judgment in the case of Šekerović and Pašalić and are capable of preventing future violations.

Cooperation with the authorities of Bosnia and Herzegovina within the context of the Human Rights Trust Fund Project: Bosnia and Herzegovina was a beneficiary country of the Human Rights Trust Fund Project on “removing the obstacles to the non-enforcement of domestic court judgments / ensuring an effective implementation of domestic court judgments”. The Department for Execution has held several bilateral consultations with the authorities of Bosnia and Herzegovina within the context of this project (the latest bilateral consultations were held in March and June 2012). Convention requirements were discussed and possible solutions for the execution of these judgments were explored during these consultations.

Decisions

The Deputies

1. noted with satisfaction that the necessary legislative measures have been taken in compliance with the findings of the Court in these judgments thanks to the co-operation of the authorities of Bosnia and Herzegovina within the context of the Human Rights Trust Fund Project on “removing the obstacles to the non-enforcement of domestic court judgments/ensuring an effective implementation of domestic court judgments”;

2. decided to close the examination of these cases and to adopt Final Resolution CM/ResDH(2012)148 as set out in document CM/Del/Dec(2012)1157 Volume of Resolutions.

Resolution CM/ResDH(2012)148

2 cases against Bosnia and Herzegovina

Execution of the judgments of the European Court of Human Rights

(Karanović, Application No. 39462/02, judgment of 20/11/2007, final on 20/02/2008

Šekerović and Pašalić, Applications Nos. 5920/04 and 67396/09, judgment of 08/03/2011, final on 15/09/2011)

(Adopted by the Committee of Ministers on 6 December 2012

at the 1157th meeting of the Ministers’ Deputies)

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

Having regard to the final judgments transmitted by the Court to the Committee in the above cases and to the violations established (see document DH-DD(2012)736E);

Recalling that the respondent State’s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

    - of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

    - of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2012)736E);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;

    DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

    DECIDES to close the examination thereof.

BULGARIA

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 + complex problem

Reference texts:

Information document CM/Inf/DH(2012)36

Information document CM/Inf/DH(2012)27

Communication from Bulgaria (comments in reply to memorandum CM/Inf/DH(2012)27) DH-DD(2012)977F

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

Communication from Bulgaria (cases of Finger and Dimitrov and Hamanov) (16/05/2012) DH-DD(2012)500

Revised action report DH-DD(2012)732E

Communication from Bulgaria (30/11/2012) DH-DD(2012)1123

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 1150th meeting

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: The proceedings in all these cases have now ended, with the exception of the Kavalovi and Kotsev and Ermenkova civil cases. The applicants whose detention was challenged by the European Court in some of the cases have been released.

General measures:

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 have adopted an administrative compensatory remedy for excessive length of proceedings which entered into force on 01/10/2012. This remedy is accessible only when the judicial proceedings have ended. Moreover, on 26/09/2012 the Bulgarian Parliament adopted at first reading a bill aiming at the introduction of judicial compensatory remedy for excessive length of civil and criminal proceedings. 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 latter will be obliged to exhaust the above-mentioned administrative remedy before they can use the judicial remedy. For more details concerning the functioning of these two compensatory remedies taken together, see the information document CM/Inf/DH(2012)36.

Moreover, the authorities have indicated that a working group has been set up in order to examine the possibility to introduce a remedy which would allow requesting the acceleration of criminal proceedings.

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

In their action reports of 17/01/2012 (DH-DD(2012)86) and 17/02/2012 (DH-DD(2012)208 and 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.

a) legislative reforms: they concern mainly amendments to the Code of Criminal Procedure introduced in 2010 and 2012, aimed in particular at limiting the unjustified referrals of cases to the stage of preliminary investigation and to the lower court. In civil matters, the electronic notification of summons to appear to parties to proceedings has been introduced (for more details, see the information document CM/Inf/DH(2012)36.

b) administrative measures: the authorities have indicated that some courts have electronic case-management systems and/or particular administrative monitoring mechanisms. Moreover, the Bulgarian courts and prosecutors’ offices are regularly subject to inspections by the Supreme Judicial Council Inspectorate. Disciplinary measures are taken by the Supreme Judicial Council Inspectorate for failure to comply with time-limits set in law for dealing with cases.

c) judicial statistics: the statistical data shows that the increase of the number of cases examined by all the Bulgarian courts has continued during the period 2009-2011. Having regard to the fact that the number of cases resolved has also increased, the proportion of the cases resolved within a year by all the Bulgarian courts has remained stable. However, the decreasing trend of backlog observed during the 2007-2009 period did not continue during the 2009-2011 period and the backlog of the Bulgarian courts has considerably increased.

Moreover, the statistics show that the workload of magistrates sitting in some large courts (Sofia District Court, Sofia City Court, etc.) is significantly higher than the workload of magistrates sitting in other courts of the same level. As a result of this, the backlog of the largest courts of the country has increased more than the national average and the proportion of cases resolved is lower than the national average (for more details, see the information document CM/Inf/DH(2012)36 which summarises the information submitted and contains an assessment of the outstanding questions).

Application

Case

Judgment of

Final on

37104/97

KITOV GROUP (list of cases)

03/04/03

03/07/03

45950/99

DJANGOZOV GROUP (list of 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

1157th meeting - Notes

As concerns the implementation of the pilot judgments, the Committee has already considered that the remedies adopted or foreseen by the authorities, taken together, seem capable of meeting the main requirements of the Court’s case-law.

It should however been noted that, to date, the judicial remedy has not yet been adopted, while the time-limit for the implementation of the pilot judgments has expired on 10 August 2012.

As concerns the length of judicial proceedings, the reforms described in Interim Resolution CM/ResDH(2010)223 and in Information document CM/Inf/DH(2012)36 seem to have improved the efficiency of the Bulgarian judicial system. Thus, in spite of the clear resurgence of the number of cases examined by the Bulgarian courts, the proportion of cases resolved within a year for all the Bulgarian courts has remained stable. However, it seems that the results of these reforms have not yet been entirely consolidated and that problems with length of proceedings may still arise because of the very important workload of some large courts (Sofia City Court, Sofia District Court).

Therefore, the Bulgarian authorities could be invited to take practical measures aiming at improving the situation of the overburdened courts and could be encouraged to provide answers to the other outstanding questions identified in Information document CM/Inf/DH(2012)36. It should be recalled in this respect that in its Interim Resolution CM/ResDH(2010)223 the Committee of Ministers had already drawn the Bulgarian authorities’ attention to the situation before the district courts located in regional centres.

Decisions

The Deputies

As regards the effective remedies required in this field:

1. recalled their decision adopted during their 1150th meeting (DH) (September 2012) according to which the administrative compensatory remedy recently adopted by the authorities and the judicial compensatory remedy proposed in the field of length of proceedings, taken together, seem capable of meeting the main requirements of the case-law of the Court;

2. noted with satisfaction the adoption by the Bulgarian Parliament, on 28 November 2012, of the legislative amendments aimed at introducing the above-mentioned judicial remedy; noted in this respect that according to the information submitted, the adopted provisions are identical to those already assessed by the Committee, except for those relating to the competent courts; invited the authorities to keep the Committee informed about the entry into force of the adopted provisions and to provide it with their translation;

3. noted with interest the explanations provided by the Bulgarian authorities in relation to some outstanding questions identified in Information document CM/Inf/DH(2012)27, in particular their intention to modify the provision governing the retrospective effect of the administrative remedy in order to ensure its compliance with the requirements of the Court in this respect; invited them to reply to the other outstanding questions contained in Information document CM/Inf/DH(2012)36, namely as concerns the functioning of the administrative compensatory remedy;

4. encouraged the authorities to continue with their works aiming at introducing an acceleratory remedy in criminal matters;

As regards the excessive length of proceedings:

5. took note with interest of the legislative and administrative measures taken by the authorities since the adoption of Interim Resolution CM/ResDH(2010)223 in December 2010, in order to reduce the length of judicial proceedings; noted, however, that an increase of the backlog in dealing with cases is observed after 2009, in particular before the most overburdened courts;

6. invited the authorities to analyse the current situation and to keep the Committee informed of the additional measures which might be taken, in particular as concerns the situation of the large courts which seem to be overburdened;

7. invited the authorities to reply to the other outstanding questions identified in Information document CM/Inf/DH(2012)36 and decided to declassify it.

BULGARIA

Application: 43577/98

Judgment final on: 06/07/2005

NACHOVA AND OTHERS v. Bulgaria

Enhanced procedure : Complex problem

Reference texts:

Information document CM/Inf/DH(2011)24rev

Communication from a NGO and reply of the government (cases of Velikova and Nachova and others)

DH-DD(2011)298

Action Plan (groups Velikova and Nachova and others) (02/03/2011) DH-DD(2011)256

Revised action report (08/11/2012) DH-DD(2012)1008rev

Decision adopted at the 1115th meeting

Case description: The case of Nachova concerns the killing, in 1996, of two Roma conscripts due to the unjustified use of fire-arms during their arrest (violation of Article 2). The European Court considered that the legal framework as well as the practice governing the use of fire-arms by the military police fell well short of the level of protection of the right to life that is required by the Convention. The case concerns also the lack of effective investigation into the killing of the two men (violation of Article 2), as well as the failure by the authorities to comply with their obligation to inquire whether or not possible racist motives may have played a role in the events (violation of Article 14 taken in conjunction with Article 2).

The other cases concern death, life-threatening injury or ill-treatment during arrests between 1996 and 1999 due to the unjustified and/or disproportionate use of fire-arms by police officers and/or the absence of adequate planning and control of police operations during which the use of fire-arms has led to death (violations of Articles 2 and 3). The Court found in this respect that the legal and administrative framework governing the use of fire-arms by the police was insufficient to protect those concerned against unjustified encroachments on their right to life or their physical integrity. These cases concern also the lack of effective investigation into these incidents (violations of Articles 2 and 3). The case of Vachkovi concerns more particularly the omission to collect statements from the officers of the Anti-Terrorism Squad. The case of Vasil Sashov Petrov concerns also the failure of the civil courts to examine a tort claim in line with the standards developed in the Court's case-law on Article 2 (violation of Articles 2 and 13).

Status of execution: The Bulgarian authorities have submitted an action report concerning this group of cases on 08/11/2012 (see DH-DD(2012)1008rev).
Individual measures: no individual measures seem possible in the cases Nachova and Tzekov (for more details, see §§ 4 – 11 of the information document CM/Inf/DH(2011)24revE). In the case of Karandja, the Prosecutor General has introduced before the Supreme Court of Cassation a request for reopening of the criminal proceedings based on the Court’s judgment. As concerns the case of Vachkovi, the authorities have indicated that the decision to terminate the preliminary investigation has been confirmed in 2001 by the Supreme Cassation Prosecutor's Office and that the domestic law does not provide for possibility to reopen or to resume the proceedings in such situations.. As concerns the cases Vlaevi and Vasil Sashov Petrov, the possibility to reopen the criminal procedures is currently examined by the Supreme Cassation Prosecutor's Office.

General measures:
- legal framework governing the use of fire-arms by the police
The provisions of the Ministry of Interior Act governing the use of fire-arms have been amended in June 2012 and the modifications have entered into force on 01/07/2012. The new provisions limit the use of fire-arms to situations in which this use is “absolutely necessary” (Section 74 § 1), require that police operations be planned in a manner to protect the life and health of persons concerned (Section 74a), require the police to stop the use of fire-arms, if the aim of the intervention has been achieved and enjoin to the law-enforcement staff to take all possible measures to preserve the life of persons concerned (Section 74 §§ 2 and 5). In addition, they prohibit the use of fire-arms in respect of persons who are not suspected of having committed violent offences and who do not pose a threat to life and limb (Section 74 § 6).

- framework governing the use of fire-arms by the military police
The conditions under which fire-arms can be used by the military police are governed by Section 18 of the Military Police Act (in force since 24/06/2011). This provision seems similar to the provisions criticised by the Court in several judgments belonging to this group of cases.
The authorities have indicated that the Ministry of Defence is working on a draft bill for the amendment of Sections 17 and 18 of the Military Police Act, in order to introduce a legal framework similar to the one recently introduced in the Ministry of Interior Act.

- training measures concerning the use of fire-arms
The case-law of the Court concerning the use of fire-arms is taught within the framework of the initial training of police officers and of the higher education curriculum provided by the Academy of the Ministry of Interior. In particular, the criterion “absolute necessity” for use of force is taught during 4 hours within the initial training of policemen. In addition, a distance training of 80 hours (2 weeks) has been elaborated following the amendments of the provisions governing the use of fire-arms and force by the police (“Police Practices and Human Rights”). The trainings provided by the Academy of the Ministry of Interior require that the officer interrupts the exercise of his or her duties during the training. In addition, the authorities have indicated that all the officers of the Bulgarian police have received practical instructions from the Ministry of Interior in cooperation with the prosecution, in order to familiarize them with the amendments of the Ministry or Interior Act introduced in June 2012.

- measures relating to the question of failure by the civil courts to examine a claim for compensation in the light of the principles flowing from the Court’s case-law concerning Article 2
This question seems to be linked to the one concerning the legal framework of the use of fire-arms by the police. In fact, the civil courts have rejected a claim for compensation on the basis of the conclusion that the action of the police officers had been lawful, because it had been consistent with the legal framework relating to the use of fire-arms, in force at the relevant time.

- measures aimed to improve the effectiveness of the investigations
These measures are examined in the context of the group of cases Velikova against Bulgaria. The problems raised by the Court concerning the omission to collect statements from officers of the Anti-Terrorism Squad are also examined in this group of cases.

- measures relating to the duty to investigate whether or not possible racist motives played a role in an excessive use of force
A more severe qualification for murder and bodily harm motivated by racial or xenophobic attitudes has been introduced in the Criminal Court in April 2011. The Committee of Ministers has considered this measure to be sufficient in respect of this question (see the decision adopted during the 1115th meeting (June 2011), as well as §§ 30 and 31 of the information document CM/Inf/DH(2011)24revE).

Application

Case

Judgment of

Final on

43577/98+

NACHOVA AND OTHERS

06/07/2005

Grand Chamber

2747/02

VACHKOVI

08/07/2010

08/10/2010

272/05+

VLAEVI

02/09/2010

02/12/2010

69180/01

KARANDJA

07/10/2010

07/01/2011

45500/99

TZEKOV

23/02/2006

23/05/2006

63106/00

PETROV VASIL SASHOV

10/06/2010

10/09/2010

Decisions

The Deputies

1. noted with satisfaction that the Bulgarian authorities have amended the provisions of the Ministry of Interior Act governing the use of fire-arms by the police and that the new legislative framework seems to comply with the requirements of Articles 2 and 3 of the Convention, in the light of the Court’s case-law;

2. invited the Bulgarian authorities to adopt rapidly a similar legal framework in the area of use of fire-arms by the military police with a view to remedying the shortcomings which remain in this field in the Military Police Act;

3. encouraged the Bulgarian authorities to continue their training efforts regarding police officers in order to guarantee the correct application of the recently adopted legal provisions and to inform the Committee of the practical training provided to all police officers following the amendment of the Ministry of Interior Act;

4. noted that information is still awaited on the training concerning the use of fire-arms provided to the military police officers and invited the authorities to present information in this respect;

5. invited also the Bulgarian authorities to provide rapidly additional information concerning the individual measures taken or envisaged in the cases of Karandja, Vlaevi, Vachkovi and Vasil Sashov Petrov.

CZECH REPUBLIC

Application 57325/00

Judgment final on 13/11/2007

D.H. AND OTHERS against the Czech Republic

Enhanced procedure: complex problem

Reference texts:

Documents transmitted by the authorities

Communication from the Czech authorities (Decrees 72/2055 and 73/2055) DH-DD(2011)825E

Communication from the Czech authorities DH-DD(2011)1064

Communication from the Czech authorities DH-DD(2011)439

Communication from the Czech authorities DH-DD(2012)498E

Communication from the Czech authorities DH-DD(2012)803

Action plan DH-DD(2012)1074E

Documents transmitted by NGOs (rule 9§2)

DH-DD(2012)629 - Communication from a NGO (Together to School Coalition) - 13.06.2012

DH-DD(2012)579 - Communication from NGOs (League of Human Rights and MDAC) - 30.05.2012

DH-DD(2012)530 - Communication from NGOs (Open Society Justice Initiative, COSIV and European Rom Rights Centre ERRC) and response from the Czech authorities - 18.05.2012 and 29.05.2012

DH-DD(2012)334 - Communication from a NGO (Open Society Justice Initiative) - 02.03.2012

DH-DD(2012)1089 - Communication from NGOs (Open society justice Initiative, COSIV, European Rom Rights Centre, Amnesty international et Liga Lydských Práv)

DH-DD(2012)1137 - Communication from a NGO (Open Society Justice Initiative)

Other documents

Information document CM/Inf/DH(2010)47

Notes of the 1128th meeting (December 2011)

Decision adopted at the 1128th meeting (December 2011)

Decision adopted at the 1144th meeting

Case description: Discrimination in the enjoyment of the applicants' right to education due to their assignment to special schools (schools for children with special needs including those suffering from a mental or social handicap) between 1996 and 1999 on account of their Roma origin (Violation of Article 14 in conjunction with Article 2 of Protocol No. 1).

Status of execution: Individual measures: education in the Czech Republic is compulsory for all children from six to fifteen. The applicants are all older than fifteen and therefore are no longer in the compulsory schooling system. No further individual measure appears necessary.

General measures: In April 2009 the Czech authorities submitted a wide-ranging action plan, updated in 2009 and early 2010. Further information was provided in May 2012. An analysis by the Secretariat of the measures set out in the Action plan is presented in document CM/Inf/DH(2010)47. Since the examination of that document in December 2010, the Committee has repeatedly underlined the importance of achieving concrete progress on the ground.

Last examination by the Committee (1144th meeting, June 2012): whilst taking note of the information submitted, the Committee “regretted that a full assessment of the information prove[d] difficult, as it was not clear how that information was linked to the Action plan. The Committee also expressed its concern about the absence of information on the impact of the measures already adopted, in particular the two Decrees adopted in September 2011 (for more information on those Decrees see DH-DD(2011)825E and the notes for the 1128th meeting, December 2011).

Accordingly, the Committee:

- “called on the authorities to provide a consolidated action plan based on a clear medium and short-term strategy, with a time-table and budget for the implementation of the measures foreseen, and which responds to all the outstanding questions identified in memorandum CM/Inf/DH(2010)47, this to be prepared in close co-operation with the Secretariat;
- invited the authorities to submit “the results of the monitoring of the impact of the measures adopted during the current school year [by the Czech Schools Inspectorate], and the report of the Czech Public Defender of Rights (Ombudsman).

The Committee also underlined in this context the need to clarify the status of the existing Action plan in the framework of the Strategy for the fight against social exclusion 2011-2015.

Follow up given to the Committee’s request:

The results of the monitoring of the impact of the measures adopted by the Czech Schools Inspectorate were provided (see DH-DD(2012)803E). The report of the Czech Schools Inspectorate concludes that for the last school year there was a small decrease in the proportion of Roma pupils educated in a programme for pupils with a “slight mental disability” (from 35% to 26.4%). It attributes this directly to the two Decrees adopted in September 2011.

Whereas, the report of the Ombudsman concludes that the proportion of Roma pupils educated in such programmes remains unchanged (at around 32-35%).

These results show that overall, the percentage of Roma pupils educated in programmes for pupils with a “slight mental disability” remains disproportionately high in comparison with the percentage of Roma in the total population, estimated at around 2.8%. The Ombudsman concludes that this is proof of persistent, indirect discrimination.

Both reports also include a number of recommendations for measures to improve implementation of the judgment.

Preparation of the consolidated action plan

Representatives from the Department for the Execution of Judgments went to Prague for bilateral consultations with the authorities on 3-4 October 2012, with a view to working with the authorities to achieve a consolidated action plan that would respond to the Committee’s concerns, including the need to clarify the status of different documents submitted in the framework of the case.

It should be underlined that the consultations allowed for productive discussions with high-level representatives from the authorities and other instances, directly concerned with the execution of the present judgment. Meetings were held with Vice-Ministers in the Ministry of Education; senior officials from Office of the Government, including the Government Commissioner for Human Rights; senior officials from the Ministry of Justice; the Public Defender of Rights (Ombudsman) along with representatives from his office and a representative from the Czech Schools Inspectorate.

The consolidated Action plan was submitted on 19 November 2012 (see DH-DD(2012)1047E). It includes a clear medium and short term strategy along with a time-table for the implementation of the measures foreseen. There is a budgetary indication for each measure and clarifications are also presented on the status of the plan in relation to the framework of the Strategy for the fight against social exclusion 2011-2015.

Application

Case

Judgment of

Final on

57325/00

D.H. AND OTHERS

13/11/2007

Grand Chamber

1157th meeting - Notes:

The consolidated Action plan, submitted in response to the request of the Committee in its June 2012 decision, was prepared in close co-operation with the Czech Ombudsman and the Czech Schools Inspectorate and it reflects the recommendations made by both those bodies in their recent reports (see Section 4 of the consolidated Action plan).

In general terms, the consolidated Action plan appears to constitute a very positive development. It includes a certain number of short term measures, including a new amendment to Decree 73/2005 to remove the possibility for pupils without a disability to be educated in a class for pupils with disabilities (Measure A). This measure directly addresses the concern raised on this subject by the Committee in its December 2011 decision.

Other measures provide for:

    - the revision of diagnostic tools used to identify pupils with “slight mental disabilities”;
    - increased supervision of diagnostic and counselling services (the bodies which identify and manage progress of pupils with a “slight mental disability”);
    - regular monitoring of the implementation of the measures proposed and continued engagement with civil society.

This being said, it should also be noted that according to the statistics presented in the consolidated Action plan the overall percentage of Roma pupils educated in programmes for pupils with a “slight mental disability” remains disproportionately high even if a slight decrease in this percentage is recorded.

It is important therefore to carry out the rapid implementation of the measures envisaged, while also ensuring their impact on the ground. In this respect it might be noted with interest that the Czech authorities provide for monitoring of the implementation of the measures presented and declare that they are ready to react, on the basis of the evaluation of the situation during and after their adoption, through additional measures which might prove necessary.

Decisions

The Deputies

1. noted with interest the consolidated action plan submitted in response to the Committee’s decision at the 1144th meeting (June 2012) (DH) and the measures proposed, in particular the measure to remove the possibility for pupils without a disability to be educated in a class for pupils with disabilities, which directly addresses a concern previously raised by the Committee on the subject;

2. noted however that according to the statistics presented in the consolidated action plan the overall percentage of Roma pupils educated in programmes for pupils with a “slight mental disability” remains disproportionately high even if a slight decrease in this percentage is recorded;

3. welcomed therefore the Czech authorities’ commitment to ensure monitoring of the implementation of the measures foreseen and to adopt, on the basis of an assessment of the situation during and after their adoption, all the additional measures which might prove necessary;

4. reiterated the importance of rapidly obtaining concrete results and invited the authorities to keep the Committee regularly informed of all developments in the implementation of the Action plan and in the authorities’ reflection on the development of the concrete situation on the ground.

GEORGIA

Application 25091/07

Judgment final on 26/07/2011

ENUKIDZE AND GIRGVLIANI v. Georgia

Enhanced procedure: Complex problem

Reference texts:

Communication from the applicants' representative (26/09/2011) DH-DD(2011)1013E

Communication from Georgia (19/09/2012) DH-DD(2012)938E

Communication from Georgia (18/10/2012) DH-DD(2012)1003E

Action Plan DH-DD(2012)1134

Case description: In this case the applicants’ 28 year old son was abducted and beaten to death in 2006, by a group of senior law enforcement officers. The European Court found a violation of the procedural limb of Article 2 of the Convention on account of the lack of an effective investigation into the death of the applicant's son. It also found that the authorities had not complied with their obligations to furnish all necessary facilities to the Court on the grounds that the Georgian Government had been late, and had partly failed, to submit a number of requested items of evidence to the Court, without providing convincing reasons for it (violation of Article 38).

As regards the lack of an effective investigation (violation of Article 2), the Court noted in particular the following shortcomings:

The part of the investigation carried out by the Ministry of Interior between 26 January and 5 March 2006 lacked the requisite independence and impartiality due to the institutional connection and even hierarchical subordination between the implicated senior Ministry officers and the investigators in charge of the case.

The part of the investigation carried out by the Tbilisi City's Prosecutor's Office lacked the requisite thoroughness and objectivity. The Court noted a number of serious omissions, the main one being the refusal, on the basis of Article 69 (j) of the Code of Criminal Procedure (CPP), to grant the applicants leave to be involved in the investigation. The prosecution authority did not even inform them of the findings made in the course of the investigation. In addition, a number of potential witnesses had not been identified or questioned, and important items of evidence had either not been collected at all, or disclosed.

As regards the judicial proceedings, the Court held that a major deficiency was the domestic courts' persistent refusal to provide the applicants with sufficient time and facilities to study the case materials, thus depriving them of the opportunity to prepare their position for and participate effectively in the trial. While the accused, in keeping with Article 76 § 3 of the CCP, had unrestricted access to the case materials from the investigation stage, the applicants, as the civil party, found themselves in a clearly disadvantageous position during the trial. The domestic courts also disregarded the applicants' numerous requests for the collection of additional evidence directly relevant to the establishment of the truth in the case. The Court concluded that the applicants were arbitrarily denied to participate effectively in the judicial proceedings. In conclusion, the Court held that the investigation into the death of Sandro Girgvliani manifestly lacked the requisite independence, impartiality, objectivity and thoroughness.

Finally, as regards the punishment of the convicted persons, the Court concluded that the sentences as initially imposed upon the convicts by the domestic courts and actually implemented by the relevant domestic authorities did not constitute adequate conviction.

Status of execution: Information in the form of a “preliminary action plan” was received on 14/01/2012 pending the submission of a consolidated action plan to the Committee of Minsters. By letter of 19/09/2012 (DH-DD (2012)938), the Georgian authorities indicated that the consolidated action plan was being finalised and that it was envisaged to present it to the Committee of Ministers at the latest by 25 October 2012. On 18/10/2012, the authorities requested an extension for the submission of the said action plan (25 November 2012) (DH-DD(2012)1003).

The Government indicated that the action plan for the attention of the Committee of Ministers would be circulated by 4 December 2012.

Application

Case

Judgment of

Final on

25091/07

ENUKIDZE AND GIRGVLIANI

26/04/2011

26/07/2011

Decisions

The Deputies

1. noted that the action plan on this case was presented to the Committee of Ministers and instructed the Secretariat to prepare an assessment;

2. agreed to resume consideration of this question at their 1164th meeting (March 2013) (DH) on the basis of the assessment by the Secretariat.

GREECE

Application 35151/05

Judgment final on 11/01/2008

BEKIR-OUSTA AND OTHERS GROUP v. Greece

Enhanced procedure: Complex problem

Reference texts:

Communication from the chairman of the applicant association (case of Tourkiki Enosi Xanthis and others) DH-DD(2012)554E

Communication from Greece (26/04/2012) DH-DD(2012)423E

Communication from Greece (24/10/12) DH-DD(2012)1022

Communication from the applicants’ representative (20/11/12) DH-DD(2012)1085

Communication from a NGO (ABTTF) and reply of the government DH-DD(2011)1054

Decision adopted at the 1086th meeting

Decision adopted at the 1100th meeting (page 32)

Decision adopted at the 1128th meeting

Decision adopted at the 1144th meeting

Case description: Violation of the right to freedom of association (Article 11) due to the refusal to register associations (cases Bekir-Ousta and others and Emin and others; domestic decisions of last instance in 2006 and 2005 respectively) and to the dissolution of an association (case Tourkiki Enosi Xanthis and others; domestic decision of last instance in 2005) on the grounds that their aim was to promote the idea that an ethnic minority existed in Greece as opposed to the religious minority recognised by the Lausanne Treaty in 1923.

Concerning the cases Bekir-Ousta and others and Emin and others, the European Court noticed that the contested measure relied on a mere suspicion about the true intentions of the founders of the association and the actions that it might have led to once it had started functioning. Moreover, the Court considered that ‘’even assuming that the true aim of the association was to promote the idea that an ethnic minority existed in Greece, this cannot be in itself considered as a threat to a democratic society. The Court noted in this respect that «nothing in the association’s statute suggested that its members were advocating the use of violence or of anti-democratic or anti-constitutional means». The Court recalled that Greek legislation (Article 12 of the Constitution and Article 81 of the Civil Code) does not set up a system of preventive control for the establishment of non-profit associations. The Court also noted that the Greek courts could order the dissolution of the associations mentioned above, if they subsequently pursued an aim different to the one stated in their statutes, or if their functioning proved to be contrary to public order. Consequently the Court concluded that the impugned measure was disproportionate to the aim pursued.

In the case Tourkiki Enosi Xanthis and others, the European Court underlined the radical nature of the measure at issue, namely the dissolution of the association and noted in particular that prior to its dissolution the relevant association had continued its activities for about half a century without hindrance and without any indication that its members have ever used violence or rejected democratic principles.

Violation of Article 6§1 in the case of Tourkiki Enosi Xanthis and others due to the excessive length of civil proceedings related to the dissolution of the association.

Status of execution: Individual measures:

- Payment of just satisfaction in the case Tourkiki Enosi Xanthis in respect of non-pecuniary damage suffered as a result of the violation of Article 6§1: it should be recalled that at its 1144th meeting (June 2012) the Committee took note of the steps taken by the Greek authorities with the view to placing the sum due (EUR 8 000) at the disposal of the applicant association and considered in the light of the information provided that the Greek authorities have fulfilled their obligations in that respect.

- Applications for revocation of the previous decisions refusing the registration of the associations (cases Bekir-Ousta and others and Emin and others) and of the previous decision ordering the dissolution (case Tourkiki Enosi Xanthis and others: Following the European Court's judgments, the applicants lodged a request for the revocation of the previous decisions refusing registration of their association (cases Bekir-Ousta and others and Emin and others) and the revocation of the previous decision for dissolution (case Tourkiki Enosi Xanthis and others) before national courts.

All the relevant applications, in which the revocation of the domestic courts’ decisions delivered prior to the judgments of the European Court had been requested, were rejected at the second level of jurisdiction. The rejection was based on procedural obstacles having prevented the examination of the applications on the merits. A hearing was held before the Court of Cassation on 7 October 2011 in the case Tourkiki Enosi Xanthis. At its 1128th meeting (29 November - 2 December 2011), the Committee of Ministers noted that the recent case-law of the Court of Cassation could lead to an examination on the merits of the applicants’ request. The Committee invited the Greek authorities to keep it informed of the outcome of the proceedings pending before the Court of Cassation. According to the information provided by the Greek authorities on 20 March 2012, by judgment No. 353/2012 the Court of Cassation (4th Civil Chamber, made public on 24 February 2012) dismissed the appeal lodged by the association Tourkiki Enosi Xanthis against the decision of the Court of Appeal of Thrace on procedural grounds. On 26 April 2012, the Greek authorities forwarded the official translation of this judgment.

At its 1144th meeting (June 2012), the Committee noted that the Court of Cassation, in its recent judgment No. 353/2012, dismissed the appeal in cassation of the association Tourkiki Enosi Xanthis concluding that, in the context of a non-contentious procedure, such as the present one, the revocation or revision of a final domestic judgment is possible, under Article 758 § 1 of the Code of Civil Procedure on the basis of new real facts or a change in circumstances and while a change of case-law can be described as ‘’change in circumstances’’, a judgment of the European Court does not fall within this category. The Committee also noted the commitment reiterated by the Greek authorities to implementing fully and completely the judgments under consideration without excluding any avenue in that respect, invited them to consider all measures allowing the applicants in these three cases to ask for a new registration of their association in the framework of proceedings which are in accordance with the requirements of the Convention and in particular of Article 11. The Committee furthermore invited the authorities to provide precise and concrete information on the measures envisaged in that respect.

Regarding the appeals in cassation lodged against the decisions of the Court of Appeal of Thrace in the Bekir-Ousta and others and Emin and others cases, up to 5 October 2012 the applicants had not sought the scheduling of a hearing date before the Court of Cassation. Moreover, the Tourkiki Enosi Xanthis association has not lodged an appeal in cassation against the decision of the Court of Appeal of Thrace which rejected the request for revocation of the second decision ordering the dissolution.

According to information communicated on 24/10/2012, the authorities are examining other avenues for executing fully the judgments under examination. Furthermore they indicate that the continuation of the national remedies by the applicants is not without practical effect to the extent that the change of the Court of Cassation case-law in its decision no 24/2012 (see below under general measures) could lead to the referral of the cases before the Plenary Session of the Court of Cassation and to a revocation of the decisions of second instance.

General measures: 1) Violation of Article 6§1 in the case of Tourkiki Enosi Xanthis and others: The issue of excessive length of civil proceedings is being examined under the Manios group (70626/01).

2) Violations of Article 11: The three judgments have been translated and published on the Internet site of the State Legal Council (www.nsk.gov.gr <http://www.nsk.gov.gr>). In addition, the Ministry of Justice sent an accompanying letter to the President of the Court of Cassation emphasising the main conclusions of the Court as well as the obligation for the state, in accordance with Article 46 of the Convention, to abide by the Court's judgments. In this letter the dissemination of the judgments to the judicial authorities concerned was also requested. The judgment in the case of Tourkiki Enosi Xanthis was also sent to the Prefects of the region (Drama, Kavala and Xanthi).

According to the information provided by the authorities, between January 2008 and February 2012, 43 requests for the registration of associations whose title included the adjective "minority" or indicated in some way that it was of minority origin, were accepted. At present 4 cases of refusal exist. Between March and September 2012, 8 decisions for registration were rendered. Information on their scope will be provided.

According to the information provided by "the ABTTF" (DD(2009)609) and the national authorities, the registration of an association called "South Evros Cultural and Educational Association of Western Thrace Minority" and of another association called ‘’Cultural Association of Turkish Women of the Xanthi Region’’ were refused, on 28/03/2009 by the Court of First Instance of Alexandroupoli and on 17 February 2011 by the Court of First Instance of Xanthi, respectively, due to a contradiction between the statutory articles and their titles, indicating minority origin. In the first case, this refusal was confirmed by the Court of Appeal of Thrace by its decision No. 692/2009. In the second case, the appeal lodged against the above decision of the Court of First Instance of Xanthi before the Court of Appeals of Xanthi is currently pending.

On 26 April 2012, the Greek authorities sent the official translation of judgment No. 24/2012 of the Court of Cassation (4th Civil Chamber, made public on 13 January 2012) on the appeal lodged by the "South Evros Cultural and Educational Association of Western Thrace Minority" against the decision of the Court of Appeal of Thrace of 7/12/2009 refusing registration. The Court of Cassation, applying the case-law of the European Court, overturned the said judgment of the Court of Appeal of Thrace on the ground of a violation of provisions of the Greek Constitution and of the European Convention and has referred the case back to the same court to rehear the case in a different composition.

At its 1144th meeting (June 2012), the Committee noted with interest the fact the Greek Court of Cassation (No. 24/2012) overturned a judgment of the Thrace Court of Appeal referring to Article 11 of the Convention and underlying that a mere suspicion resulting from an ambiguity in the title of this association “Western Thrace Minority” could not in itself establish a danger to public order and, therefore, there was no imperative social need to refuse to recognise the association in question. The Committee invited the Greek authorities to keep it informed on the impact of this judgment in the Greek legal order with a view to allowing associations to ask for registration in the framework of proceedings which are in accordance with the requirements of the Convention and in particular of Article 11.

In response, the Greek authorities indicated (on 24/11/2012) that a new hearing will be held before the Court of Appeal of Thrace on 7 December 2012. The Court cannot depart from the decision of the Court of Cassation. In addition, the authorities note that the change by the highest judicial jurisdiction will be followed by lower courts, which will contribute to the prevention of violations of the Convention.

At its 1144th meeting, the Committee noted that amendments were introduced to the civil code and the code of civil procedure with a view to simplifying the procedure of registration of associations. The authorities specified that under the amendments introduced to Law no. 4055/2012, registration, changes of the statutes and dissolution of an association fall within the jurisdiction of the magistrate through a shortened procedure (i.e. up to two months instead of eight months).

Application

Case

Judgment of

Final on

35151/05

BEKIR-OUSTA AND OTHERS

11/10/2007

11/01/2008

34144/05

EMIN AND OTHERS

27/03/2008

01/12/2008

26698/05

TOURKIKI ENOSI XANTHIS AND OTHERS

27/03/2008

29/09/2008

Decisions

The Deputies

1. recalled having noted at their 1144th meeting (June 2012) (DH) that the Court of Cassation, in its judgment No 353/2012, dismissed the appeal in cassation of the association Tourkiki Enosi Xanthis concluding that, in the context of a non-contentious procedure, such as the one initiated by the applicant association, the revocation or revision of a final domestic judgment is not possible on the basis of a judgment of the European Court as the latter does not constitute a “change of circumstances” under Article 758 §1 of the Code of Civil Procedure;

2. noted however the Greek authorities’ position that decision 24/2012 of the Court of Cassation can have an impact on the registration of associations in the framework of proceedings which are in accordance with the requirements of the Convention and in particular of Article 11;

3. recalled the commitment reiterated by the Greek authorities to implementing fully and completely the judgments under consideration, which have been under the supervision of the Committee of Ministers since 2008 and without excluding any avenue in that respect;

4. invited the Greek authorities to provide precise and concrete information on the measures taken or envisaged in this respect in view of an examination of these questions at the latest at their meeting of June 2013.

GREECE

Application 50385/99

Judgment final on 20/12/2004

MAKARATZIS GROUP v. Greece

Enhanced procedure: Complex problem

Reference texts:

Communication from the applicant’s representative DH-DD(2012)1131

Information document CM/Inf/DH(2009)16rev

Information document CM/Inf/DH(2012)40

Decision (and public notes) adopted at the 1100th meeting

Case description: Use of potentially lethal force by the police in the absence of an adequate legislative and administrative framework governing the use of firearms (violation of positive obligation pursuant to Article 2 to protect life in cases Makaratzis, Celniku, Karagiannopoulos and Leonidis); ill-treatment by police forces (violation of Article 3 in cases Bekos and Koutropoulos, Alsayed Allaham, Petropoulou-Tsakyri, Zelilof, Galotskin and Stefanou); treatment by coastguards amounting to an act of torture (violation of Article 3 in the case Zontul); absence of effective investigations (procedural violations of Article 2 in cases Makaratzis, Celniku, Karagiannopoulos and of Article 3 in cases Bekos-Koutropoulos, Petropoulou-Tsakiris, Zelilof, Galotskin and Zontul); failure to investigate whether or not racist motives on the side of the police may have played a role in some cases (violation of Article 14 combined with Article 3 in cases Bekos-Koutropoulos, Petropoulou-Tsakiris).

The Galotskin and Stefanou cases also concern the excessive length of the criminal proceedings (violation of Article 6§1).

Status of execution: Individual measures: in March 2009, the Department for the Execution of Judgments prepared a memorandum in order to assist the Ministers’ Deputies in their examination of the execution of the Makaratzis group of cases regarding individual measures which ‘relate mainly to the assessment by the competent authorities of the possibility of carrying out new investigations into the actions of the police forces criticised in the judgments of the Court’ (for details see CM/Inf/DH(2009)16rev).

The individual measures of the relevant cases refer in particular to three different sets of proceedings:

Concerning the criminal proceedings: the authorities indicated that Greek law did not allow the re-opening of proceedings which ended with the acquittal of the police officers involved (res judicata) (Makaratzis, Celniku, Karagiannopoulos, Bekos and Koutropoulos, and Alsayed Allaham cases). As regards the cases where the applicants’ criminal complaints were dismissed by the competent public prosecutors and where, therefore, a decision on the merits has never been taken, the authorities noted that since the alleged offences were time-barred no new investigation would be possible (cases of Zelilof and Petropoulou-Tsakiris).

Concerning the civil proceedings for damages: in the Alsayed Allaham case a payment order for the total amount of 117.108 euros was issued in favour of the applicant; this corresponds to the amount awarded by the competent administrative court as compensation, plus interest. In the Galotskin case, the Thessaloniki administrative court found that since the applicant was already awarded by the European Court the sum of 17.000 euros in respect of non-pecuniary damage, no further compensation should be awarded under the same head. As regards his request for pecuniary damage, the national court rejected the relevant claim as ill-founded on the merits (no proof provided).

Concerning the administrative proceedings: the Greek authorities have indicated that it was impossible to carry out new administrative investigations in these cases, since the disciplinary offences were time-barred and that it was therefore impossible to remedy the shortcomings of the investigations identified by the European Court. As also indicated in the above-mentioned memorandum, following a high-level meeting between the Secretariat and the Greek authorities in Athens in October 2008, the latter undertook to set up, as soon as possible, a committee of three independent members to assess the possibility of opening new administrative investigations in cases in which shortcomings in this respect had been identified by a judgment of the European Court, addressing also the issue of time-barred offences (see below under “Notes”).

General measures: the judgments in all these cases were transmitted by the Legal Council of the State, in Greek translation, to the Ministry of Justice and afterwards to the President of the Court of Cassation and the Prosecutor General in order to be disseminated to all judicial authorities. All judgments have been published on the site of the Legal Council of the State.

Issues concerning violations of the right to be tried within reasonable time in criminal proceedings (cases of Galotskin and Stefanou which the applicants joined as civil parties) are being examined within the context of the Michelioudakis pilot judgment (No. 54447/10).

The outstanding issues regarding the general measures of this group of cases are presented in the memorandum prepared by the Secretariat (CM/Inf/DH(2012)40).

Application

Case

Judgment of

Final on

50385/99

MAKARATZIS

20/12/2004

Grand Chamber

25771/03

ALSAYED ALLAHAM

18/01/2007

23/05/2007

15250/02

BEKOS AND KOUTROPOULOS

13/12/2005

13/03/2006

21449/04

CELNIKU

05/07/2007

05/10/2007

2945/07

GALOTSKIN

14/01/2010

14/04/2010

27850/03

KARAGIANNOPOULOS

21/06/2007

21/09/2007

43326/05

LEONIDIS

08/01/2009

05/06/2009

44803/04

PETROPOULOU-TSAKIRIS

06/12/2007

06/03/2008

2954/07

STEFANOU

22/04/2010

04/10/2010

17060/03

ZELILOF

24/05/2007

24/08/2007

12294/07

ZONTUL

17/01/2012

17/04/2012

1157e meeting - Notes:

On 18/11/2011, the authorities provided consolidated information (also in light of the bilateral consultations with the Legal Council of the State in November 2010) and on 24/10/2012, additional information on the establishment by law of the above-mentioned Committee, as well as on general measures already taken and/or envisaged in order to address the shortcomings found by the Court. The general measures are analysed and assessed in the memorandum CM/Inf/DH(2012)40 prepared by the Secretariat. The proposed decision is based on the summary of the assessment presented in the memorandum.

Decisions

The Deputies

1. took note of the memorandum containing an assessment of the measures taken and/or envisaged by the Greek authorities in this group of cases and endorsed the evaluation presented in the said memorandum;

2. welcomed the abolishment of Law No. 29/1943 on the use of firearms that was criticised by the European Court, noted that the new national legislation has introduced a modern and comprehensive legislative framework for the use of firearms by the police and decided to close the supervision of the general measures taken by Greece to prevent similar violations of Article 2;

3. welcomed the establishment by Law No. 3938/2011 of a three-member Committee competent both for assessing the possibility of opening new administrative investigations in cases where failures have been identified by the European Court and for the handling of (new) abuse complaints;

4. noting the findings of the European Court in this group of cases regarding the lack of effective investigations, stressed the importance of interpretation and implementation of the law by the said Committee as well as by the competent investigating authorities bearing in mind the Convention’s and the Court’s case-law;

5. invited the authorities to keep them updated on the establishment and effective functioning of the Committee, in particular also with regard to an expected deterrent and preventive effect as regards potential future violations of Article 3 by members of the police force;

6. also invited the authorities to provide information on the outstanding issues identified in the summary of the assessment presented in the memorandum CM/Inf/DH(2012)40 and decided to declassify the said memorandum.

IRELAND

Application 25579/05

Final judgment 16/12/2010

A. B. and C. v. Ireland

Enhanced procedure : complex problem

Reference texts:

Action plan DH-DD(2011)480

Updated Action plan DH-DD(2012)66E

Updated Action plan DH-DD(2012)1124

Communication from Ireland DH-DD(2012)1079E

Communication from an association (Irish Family Planning Association DH-DD(2011)628E

Communication from a NGO (Irish Council for Civil Liberties) DH-DD(2011)645

Communication from a NGO (National Women's Council of Ireland) DH-DD(2012)738E

Communication from a NGO (Irish Family Planning Association (IFPA)) DH-DD(2012)753E

Communication from a NGO (Irish Council for civil liberties) DH-DD(2012)882E

Communication from a NGO (European Centre for Law and Justice) DH-DD(2012)917E

Communication from a NGO (Irish Family Planning Association (IFPA)) DH-DD(2012)1135

Decision adopted at the 1136th meeting

Case description: The European Court considered that the third applicant, who had a rare form of cancer, could not establish - due to a lacuna in the legal framework - whether she met the criteria to access an abortion, which is lawful in Ireland when there is a real and serious risk to the life of the mother (violation of Article 8).

Status of execution: Individual measures: The European Court awarded the third applicant just satisfaction in respect of non-pecuniary damage. Given the circumstances of the case and the just satisfaction awarded by the Court, no other measure appears necessary.

General measures: The Action plan submitted by the Irish authorities (last updated on 13 January 2012) states that an expert group was established in January 2012, with a remit to recommend a series of options to the Irish government on how to implement the European Court’s judgment. According to the Action plan, the group would meet regularly (at least once a month) and then submit a report for the Irish government to consider within 6 months from its establishment (i.e. by July 2012).

In view of this time-table, the authorities undertook to submit a further update to the Action plan by the end of October 2012 to inform the Committee on “developments and next steps in the implementation of the judgment”. On 25 October the authorities indicated that they would not be able to meet this deadline and that they intended to submit the update to the Action plan on 30 November 2012 (see DH-DD(2012)1079).

In August and September 2012, four NGOs submitted communications in this case, specifying inter alia that the authorities extended the deadline for the submission of the report by the expert group by 3 months to 3 September 2012. Three of the NGOs indicate their concern about this extension and the fact that there have been no substantive developments in the execution of the judgment, now final for nearly two years. They also stress the importance of adopting interim measures.

Application

Case

Judgment of

Final on

25579/05

A. B. AND C.

16/12/2010

Grand Chamber

1157th meeting – Notes

This case concerns the lack of legislative implementation of Article 40.3.3 of the Irish Constitution, and more particularly the lack of effective and accessible procedures allowing the third applicant to establish a right to an abortion under that provision (§264 of the judgment) The Court specified that the “implementation of Article 40.3.3. [of the Irish Constitution] would impose on the State … a sensitive and complex task” but that “implementation could not be considered to involve significant detriment to the Irish public since it would amount to rendering effective a right already accorded, after referendum, by Article 40.3.3 of the Constitution” (§266 of the judgment).

Decisions

The Deputies

1. noted with satisfaction that on 13 November 2012 the expert group tasked with advising the Irish authorities on how to implement the judgment, submitted its report which identifies four options – guidelines, secondary legislation, primary legislation and primary legislation coupled with regulations – and that the authorities will decide on the option to be pursued to implement the judgment before 20 December 2012;

2. highlighted, in this connection, that the expert group noted that "Ireland is under a legal obligation to put in place and implement a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether or not they are entitled to a lawful abortion in accordance with Article 40.3.3° of the Constitution as interpreted by the Supreme Court in the X case” and considered that this would address the concerns raised by the Court (see §§264-267 of the judgment);

3. recalled also in this context that the European Court found the general prohibition on abortion in criminal law constituted a significant chilling factor for women and doctors because of the risk of criminal conviction and imprisonment, and noted the view of the expert group that only the implementation of a statutory framework would provide a defence from criminal prosecution;

4. underlined again their concern regarding the situation of women who are of the opinion that their life may be at risk due to their pregnancy in circumstances similar to those experienced by the third applicant and invited the Irish authorities to take all necessary measures in that respect;

5. urged the Irish authorities to expedite the implementation of the judgment both in that regard and generally, and invited them to inform the Committee of the option to be pursued to implement the judgment as soon as possible;

6. decided to resume consideration of these issues at the latest at its 1164th meeting (March 2013) (DH).

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 the authorities DH-DD(2012)1011

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 1150th 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: the European Court indicated “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 their action plan, the Italian authorities confirmed that contacts were immediately taken with the Libyan authorities and that the Italian ambassador in Tripoli was subsequently asked to strengthen those contacts in light of the urgent nature of the individual measures. However, no further information has been provided since the last examination of the case (September 2012), and in particular no concrete information on the situation of any of the applicants has been provided.

Issues concerning the payment of just satisfaction:

On 17 October 2012, the authorities provided information in relation to the payment of one of the applicants, (Ermias Brhane) who is currently resident in Italy. No information has been provided concerning the other applicants. In accordance with the decision taken by the Committee at its last examination of the case, problems raised relating to the payment of just satisfaction are being considered by the authorities, in close contact with the Secretariat, in order to find rapidly a solution in accordance with the Court’s judgment.

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 bilateral agreements concluded between Italy and Libya. Those agreements were suspended following the conflict in 2011 and according to the action plan, the suspension remains in force. The action plan also refers to a procès verbal signed on 3 April 2012, providing the basis for a new co-operation between the two countries.

At its last examination of the case, the Committee noted with satisfaction the authorities’ 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. It invited the Italian authorities to provide further information on the current law and practice. In response, the Italian authorities submitted further information on 24 October 2012 (see DH-DD(2012)11).

Application

Case

Judgment of

Final on

27765/09

HIRSI JAMAA AND OTHERS

23/02/2012

Grand Chamber

1157th meeting – Notes

According to the information recently provided by the Italian authorities, in respect of the general measures, when Italy intercepts migrants at sea coming from Libya, it transports them to reception centres in Italy, in particular in Lampedusa. The authorities also indicate in very general terms that the procedures adopted by the Italian Navy in this context are in conformity with domestic and international law and pay particular regard to the protection of fundamental rights. As regards effective remedies, general information is provided concerning the law and practice in reception centres in Italy.

However, this information still needs to be assessed in detail. In consequence, the Committee might wish to request the Secretariat to prepare an in depth assessment of the information available, in view of its next examination of the case.

Concerning the individual measures, no information has been provided. This is despite the Committee’s strong encouragement to the authorities at its last examination of the case (September 2012) to pursue their efforts to obtain the assurances required by the European Court’s judgment, and keep the Committee informed of all developments. Therefore, the Committee could envisage urging the authorities to explore all possible avenues to rapidly obtain the assurances required.

Decisions

The Deputies

1. recalled, as regards the individual measures, that the Committee strongly encouraged the authorities to obtain the information and assurances required by the Court’s judgment,

2. noted with concern that no new information has been provided in this respect and therefore urged the authorities to explore all possible avenues to rapidly obtain those assurances, and to keep the Committee regularly informed of all steps taken in this respect;

3. noted, as regards general measures, the information provided by the Italian authorities on 24 October 2012 (see DH-DD(2012)1011) and requested the Secretariat to prepare an in depth assessment of this information;

4. decided to resume consideration of these issues at their 1164th meeting (March 2013) (DH).

ITALY

Application 22461/93

Judgment final on 15/11/1996

CETERONI GROUP v. Italy

Enhanced procedure: complex problem

Reference texts:

Action report on administrative proceedings (30/07/2012) DH-DD(2012)718F

Action plan (30/03/2012) : DH-DD(2012)395F

Action plan (length of civil proceedings) DH-DD(2011)898F

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers DD(2012)4

Reply from the Secretary of the Committee of Ministers to the Registrar DD(2012)4add

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers DD(2012)4 add2

Reply from the Chair of the Committee of Ministers to the Registrar DD(2012)4add3

Letter from the Secretariat DH-DD(2012)806F

Reply from the authorities to the Secretariat’s letter DH-DD(2012)1001F

Communication from Italy DH-DD(2012)1043, DH-DD(2012)1043add

Information documents: CM/Inf/DH(2005)31, CM/Inf/DH(2005)31add, CM/Inf/DH(2005)31add2, CM/Inf/DH(2005)33, CM/Inf/DH(2005)39, CM/Inf/DH(2008)42

Interim resolutions: CM/ResDH(2010)224; CM/ResDH(2009)42; CM/ResDH(2007)2; ResDH(2005)114; ResDH(2000)135; DH(99)437; DH(99)436; DH(97)336

Decision adopted at the 1144th meeting

Case description: Excessive length of judicial proceedings since the 1990s (violations of Article 6§1).

Status of execution: Individual measures: As regards proceedings which were still pending at the time the judgments of the European Court became final, the Italian authorities indicated that they have been reported to the domestic courts with a view to speeding them up.

General measures: this is a complex systemic problem. Several information documents have been prepared and 8 interim resolutions have been adopted by the Committee of Ministers since the end of the 1990s, the latest at its 1100th meeting (DH) (December 2010) (CM/ResDH(2010)224).

Action plans on civil and criminal proceedings were provided on 10/10/2011 and 30/03/2012. These action plans present the measures taken and those still envisaged in the framework of the strategy implemented by the authorities to tackle this complex problem. They indicate, for the first time ever, a slight decrease in the backlog of civil proceedings (- 4%) in 2010, due among other factors to the introduction of mandatory mediation in some civil and commercial matters. Nevertheless, despite repeated calls from the Committee of Ministers (see the decision adopted at the 1144th meeting (DH) (June 2012)), the authorities have still not addressed the issues related to the monitoring of the impact of the measures already taken and to the calendar for the adoption of the other measures envisaged.

As regards administrative proceedings, information was provided on 30/07/2012. The authorities indicated that a legislative reform resulted in the adoption in 2010 of a new Code of Administrative Proceedings, which came into force on 26 September 2010. As a consequence of this reform, in 2011, the administrative courts (the Council of State and the regional administrative courts) registered an overall decrease of the backlog of 68,302 cases. According to the Italian authorities, although the results of this reform are “hampered” by the need to process the backlog, the length of administrative proceedings is presently in a better position when compared to that of the civil proceedings. However, the authorities have not measured the backlog of administrative proceedings and have not yet drawn up a timetable for anticipated medium-term results with a view to assess the impact of this reform on the backlog and to identify additional measures, if need be.

In the letter from the Registrar of the Court to the Chair of the Committee of Ministers dated 22 June 2012 (DD(2012)4add2E), Italy appeared as the first among the seven member States which have the highest number of repetitive applications pending before the Court with more than 8,000 applications concerning the length of proceedings and the implementation of decisions taken under the Pinto law.

CETERONI GROUP

Application

Case

Judgment of

Final on

22461/93

CETERONI

- List of the cases (judicial proceedings)

- List of the cases (administrative courts)

15/11/1996

15/11/1996

1157th meeting – Notes

(see under Mostacciuolo)

Decisions (see under Mostacciuolo)

ITALY

Application 32190/96

Judgment final on 17/10/2003

GROUP LUORDO v. Italy

Enhanced procedure: Major structural problem

Reference texts

Action plan DH-DD(2012)58F

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers DD(2012)4

Reply from the Secretary of the Committee of Ministers to the Registrar DD(2012)4add

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers DD(2012)4 add2

Reply from the Chair of the Committee of Ministers to the Registrar DD(2012)4add3

Letter from the Secretariat DH-DD(2012)806F

Reply from the authorities to the Secretariat’s letter DH-DD(2012)1001F

Communication from Italy DH-DD(2012)1043, DH-DD(2012)1043add

Information documents CM/Inf/DH(2005)31; CM/Inf/DH(2005)39

Interim resolutions CM/ResDH(2010)224 ; CM/ResDH(2009)42 ; CM/ResDH(2007)27

Decision adopted at the 1144th meeting

Case description: Restrictions of the applicants' individual rights following bankruptcy proceedings and, in certain cases, excessive length of judicial proceedings since the 1990s (violations of Articles 6§1, 8, 13, 1 Protocol No. 1, 3 Protocol No. 1, and 2 Protocol No. 4).

Status of execution: Individual measures: As regards proceedings which were still pending at the time the judgments of the European Court became final, the Italian authorities indicated that they have been reported to the domestic courts with a view to speeding them up.

General measures: As regards the restrictions of the applicants' individual rights following bankruptcy proceedings, Legislative Decree No. 5/2006 allowed erasing the restrictions of rights and freedoms criticised in the Court's judgments.

The length of such proceedings raises a complex systemic problem. Three interim resolutions have been adopted by the Committee of Ministers, the latest at its 1100th meeting (DH) (December 2010) (CM/ResDH(2010)224).

In an action plan provided on 16/01/2012, the Italian authorities presented the measures taken in this group of cases as well as statistical data showing that, from 2008 to 2010, a decrease in the average length of bankruptcy proceedings was registered. The authorities provided no information on the issues related to the monitoring of the effects of the measures already taken and to the calendar for the adoption of the other measures envisaged, notwithstanding the Committee of Minister’s repeated calls, latterly in its decision adopted at the 1144th meeting (DH) (June 2012).

In the letter from the Registrar of the Court to the Chair of the Committee of Ministers dated 22 June 2012 (DD(2012)4add2E), Italy appeared as the first among the seven member States which have the highest number of repetitive applications pending before the Court with more than 8,000 applications concerning the length of proceedings and the implementation of decisions taken under the Pinto law.

LUORDO GROUP

Application

Case

Judgment of

Final on

32190/96

LUORDO

17/07/03

17/10/03

47778/99

BASSANI

11/12/03

11/03/04

14448/03

BERTOLINI

18/12/2007

07/07/2008

56298/00

BOTTARO

17/07/03

17/10/03

13697/04

CARBE AND OTHERS

23/06/2009

23/09/2009

30408/03

CAVALLERI

26/05/2009

26/08/2009

24824/03

COLOMBI

26/05/2009

26/08/2009

1595/02

DE BLASI

05/10/2006

12/02/2007

10347/02

DI IESO

03/07/2007

03/10/2007

37360/04

DIURNO

23/06/2009

23/09/2009

77986/01

FORTE

10/11/2005

10/02/2006

10756/02

GALLUCCI

12/06/2007

12/11/2007

10481/02

GASSER

21/09/2006

12/02/2007

55984/00

GOFFI

24/03/2005

06/07/2005

6480/03

MUR

26/05/2009

26/08/2009

7503/02

NERONI

20/04/2004

10/11/2004

39884/98

PARISI AND 3 OTHERS

05/02/04

05/05/04

44521/98

PERONI

06/11/03

06/02/04

34562/04

ROCCARO

23/06/2009

23/09/2009

52985/99

S.C., V.P., F.C. AND E.C.

6/11/03

6/02/04

981/04

SHAW

10/03/2009

10/06/2009

13606/04

VICARI MARIA

26/05/2009

26/08/2009

29070/04

VINCI MORTILLARO

23/06/2009

23/09/2009

7842/02

VIOLA AND OTHERS

08/01/2008

08/04/2008

1157th meeting – Notes

(see under Mostacciuolo)

Decisions (see under Mostacciuolo)

ITALY

Applications 64705/01 and 45867/07

Judgments final on 29/03/2006 and 20/06/2011

MOSTACCIUOLO Giuseppe (I) GROUP v. Italy

GAGLIONE AND OTHERS v. Italy

Enhanced procedure: complex problem

CM reference texts:

Action plan (30/03/2012) : DH-DD(2012)395

Action plan DH-DD(2011)899

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers DD(2012)4

Reply from the Secretary of the Committee of Ministers to the Registrar DD(2012)4add

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers DD(2012)4 add2

Reply from the Chair of the Committee of Ministers to the Registrar DD(2012)4add3

Letter from the Secretariat DH-DD(2012)806

Reply from the authorities to the Secretariat’s letter DH-DD(2012)1001

Communication from Italy DH-DD(2012)1043, DH-DD(2012)1043add, DH-DD(2012)1125

Interim Resolutions CM/ResDH(2010)224 ; CM/ResDH(2009)42 ; CM/ResDH(2007)2

Decision adopted at the 1144th meeting

Cases description: 1) Insufficient amount and delay in payment of awards made in the context of a compensatory remedy available since 2001 to victims of excessively lengthy proceedings (violations of Article 6§1 and/or Article 1 of Protocol No. 1).

In its quasi-pilot judgment Gaglione and others (475 applicants), the European Court found that the delay by the Italian authorities in implementing the Pinto decisions ranged from 9 to 49 months, reaching 19 months in 65% of the cases. Under Article 46, it underlined the existence of a widespread problem: on 7 December 2010 more than 3,900 applications relating among other things to the delay in paying "Pinto" compensations were pending before the Court. The number of applications has increased from more than 600 lodged in 2007 to more than 1,300 in 2010. On 31 December 2008, more than 81,000,000 EUR had been paid as “Pinto” compensation and approximately 36,500,000 EUR remained payable (§§52 and 53). The Court saw in this failure on the part of the state not only an aggravating factor with regard to its responsibility under the Convention, but also a threat to the future of the system set in place by the Convention: it observed that general measures at national level are undoubtedly required to re-establish the effectiveness of the "Pinto" remedy, including earmarking more funds in the budget for the implementation of Pinto decisions (§§55 and 59).

2) Excessive length of proceedings concerning the compensatory remedy (violations of Article 6§1).

In the case of Belperio and Ciarmoli (judgment of 21/03/2010), the European Court found in particular that the cases pending before it and concerning the length of “Pinto” proceedings may point to a general problem in its functioning (§54).

Status of execution: Individual measures: As regards proceedings which were still pending at the time the judgments of the European Court became final, the Italian authorities indicated that they have been reported to the domestic courts with a view to speeding them up.

General measures: Domestic case-law developments show compliance with the criteria set by the European Court as regards determination of compensatory amounts.

1) As regards the serious problem of delay in paying the compensation awarded by national courts under the Pinto procedure, the Committee of Ministers strongly encouraged the authorities to consider amending Act No. 89/2001 with a view to setting up a financial system resolving the problems of delay in the payment of compensation awarded, to simplify the procedure and to extend the scope of the remedy to include injunctions to expedite proceedings (see Interim Resolution Resolutions CM/ResDH(2009)42 and CM/ResDH(2010)224).

In an updated action plan of 30/03/2012, the authorities specified that the following two proposals have been put forward and will be discussed further at the highest level in order to adopt a final strategy: the fiscal deduction of sums awarded in Pinto proceedings and a different system of allocating budgetary resources for payment of those sums. In accordance with the decision adopted at the 1144th meeting (DH) (June 2012), the Italian authorities had to provide the Committee with a detailed explanation on the announced plan for payment of arrears under the Pinto proceedings. No information was provided by the authorities on the outcome of the discussions aiming at defining the final strategy which would allow clearing the arrears in full and avoiding delays in the payment of these sums in the future. The authorities have only confirmed that on 30 October 2012, the Ministry of Justice begun paying these arrears for the period 2005 – 2008 (DH-DD(2012)1043add).

In monitoring the implementation of these judgments, it was found that amendments had been brought to the Pinto law by Legislative Decree No. 83 entitled “Misuri urgente per la crescita del paese”, issued on 22 June 2012, which came into force on 26 June 2012. The new provisions introduced a written procedure for the examination of the compensation claims. Other provisions conditioned the access to the Pinto remedy upon termination of the main proceedings and excluded or limited the compensation in certain cases. The amendments occasioned an exchange between the Secretariat and the authorities as regards their compatibility with the Convention and the European Court’s case law on the effectiveness of the remedies and compensation criteria (see DH-DD(2012)806 and DH-DD(2012)1001). Article 3, §7 of the Pinto law, which provides that the payment of the compensation is made within the limit of the available funds, has not been amended. Under the new legislation, the purely compensatory nature of the Pinto remedy is maintained.

In the letter from the Registrar of the Court to the Chair of the Committee of Ministers dated 22 June 2012 (DD(2012)4add2E), Italy appeared as the first among the seven member States which have the highest number of repetitive applications pending before the Court with more than 8,000 applications concerning the length of proceedings and the implementation of decisions taken under the Pinto law.

2) As regards the issue of excessive length of Pinto proceedings, the authorities consider that the recent amendments brought to the Pinto law (see above) simplified these proceedings and will allow avoiding such violations. Clarifications are still necessary on whether the new provisions apply to ongoing proceedings.

Application

Case

Judgment of

Final on

64705/01

MOSTACCIUOLO GIUSEPPE No. 1 (list of the cases)

29/03/2006

Grand Chamber

45867/07+

GAGLIONE AND OTHERS

21/12/2010

20/06/2011

Decisions

The Deputies

1. took note with interest of the information provided by the authorities on the ongoing reform of the financing mechanism set by the Pinto law and on the first measures implemented in order to liquidate the compensation arrears to be paid under this law and to settle amicably the cases pending before the European Court which raise such issues;

2. considered that the information presented on these points, notwithstanding the need of a more in-depth assessment, shows that the measures taken and envisaged are aimed at eliminating in a sustainable manner the delays in the payment of the compensation awarded under the Pinto law and encouraged therefore the authorities to bring this reform to a swift conclusion;

3. noted however with concern that recent amendments brought to the Pinto law, which condition the access to the remedy provided by this law upon the termination of the main proceedings and which exclude de plano the compensation for the proceedings that have lasted less than or equal to 6 years, may raise issues as to their compatibility with the requirements of the Convention and the Court’s case-law on effectiveness of remedies and compensation criteria;

4. noted with interest that an overall decrease of the backlog of administrative proceedings was registered at the end of 2011 as a result of the entry into force in 2010 of the new Code of Administrative Proceedings and invited the authorities to supplement this information with updated statistical data on the average length of these proceedings and with details on the manner in which the impact of this reform is monitored and assessed;

5. noted, as regards the other types of proceedings in question in these cases, that additional information is needed on important outstanding issues, namely the monitoring of the impact of the measures already taken and the calendar for the adoption of the other envisaged measures, to allow the Committee to acquire a precise view of the strategy drawn up by the authorities to remedy this problem;

6. recalled that excessive delays in the administration of justice and the malfunctioning of the Pinto remedy result in a denial of the rights enshrined in the Convention and are a serious threat to the effectiveness of the system of the Convention;

7. underlined again the urgency to stop the flow of further repetitive applications before the European Court and the urgency to find a sustainable solution to the structural problem of excessive length of proceedings;

8. therefore urged the authorities to provide a consolidated action plan, containing the necessary information on all outstanding issues in order to enable the Committee to carry out a thorough assessment of the state of the execution of these judgments at one of their next meetings;

9. encouraged the Italian authorities to co-operate closely with the Secretariat in the drawing up of the consolidated action plan and also to consider making use of the expertise of the Council of Europe in this area with a view to identifying sustainable solutions to the issues raised by these cases.

ROMANIA

Application :57001/00, 30767/05

Judgments final on 30/11/2005, 12/01/2011

STRAIN AND OTHERS GROUP v. Romania

MARIA ATANASIU AND OTHERS v. Romania

Enhanced procedure:

pilot judgment

Reference texts:

Information document CM/Inf/DH(2012)18

Conclusions of the Round Table on restitution of properties nationalised under the communist regimes

Action plan (February 2010) and supplementary information (September 2010) DH-DD(2011)907

Revised action plan (October 2011) DH-DD(2011)908F

Revised action plan (November 2011) DH-DD(2011)1039F

Communication from Romania of 25/04/2012 (general measures) DH-DD(2012)424F

Communication from Romania: translation into English of the draft law aimed at executing the Maria Atanasiu and others pilot judgment DH-DD(2012)505E

Communication from Romania on the compensation process (March 2012) DH-DD(2012)212F

Communication from Romania (15/10/2012) (general measures) DH-DD(2012)971F

Decision adopted at the 1144th meeting

Case description: The violations found in these cases originated in an important structural problem connected with the ineffectiveness of the mechanism set up to afford restitution of or compensation for properties nationalised during the communist regime.

The cases in this group mainly concern:

- the sale by the State of nationalised property to the tenants, without securing compensation for the legitimate owners, despite domestic courts' rulings, between 1993 and 2006, declaring unlawful the acts of nationalisation (violations of Article 1 of Protocol No. 1, see the case of Strain and others, judgment of 21/07/2005);

- the delayed enforcement by the administrative authorities or their failure to enforce judicial or administrative decisions delivered between 1991 and 2006, ordering restitution of nationalised property and/or payment of compensation in lieu (violations of Article 1 of Protocol No. 1 and/or of Article 6§1, see the Popescu Sabin case, judgment of 02/03/2004 and the Viasu case, judgment of 09/12/2008).

Considering the scale of the problem, the European Court gave a pilot judgment in the case of Maria Atanasiu and others (judgment of 12/10/2010), in which it requested the adoption of measures capable of affording adequate redress to all the persons affected by the restitution laws, within 18 months. This deadline was extended by the Court until 12 April 2013.

Status of execution: Individual measures: In a number of cases information is still awaited on whether the property has been returned to the applicants or if they have received the just satisfaction awarded by the European Court. In its judgments the Court has indeed left to the State the choice between these two possibilities.

General measures: The authorities submitted information, including in the form of an action plan, on the reform carried out in response to the Court’s judgments as well as on the current state of the restitution and compensation process.

According to this information, an interministerial group prepared a draft law with a view to rendering the restitution and compensation process more effective. In April 2012, the draft law was open for public discussion, a phase of the legislative process which precedes the transmission of the draft law to Parliament, for adoption.

The draft law (see DH-DD(2012)505), assessed by the Secretariat in the Memorandum CM/Inf/DH(2012)18, was analysed by the Committee at its June 2012 DH meeting. On this occasion, the Committee expressed its concern at the level of compensation chosen (15% of the market value of the property) and the timetable for its payment in instalments (10 or 12 years), in particular in view of the absence of justification of these choices.

As regards the current state of the restitution and compensation process, the data submitted did not afford a clear view of the overall number of claims yet to be satisfied. Therefore, the Committee reiterated its invitation to the Romanian authorities to provide it, at the earliest opportunity, with comprehensive consolidated data.

In a communication of 15 October 2012 (DH-DD(2012)971), the Romanian authorities indicated that, after having been reorganised by Prime-minister’s decision, the interministerial group resumed its activities and it is currently improving the draft law, taking into account the observations comprised in the memorandum of the Secretariat. According to a revised calendar, the draft law shall be completed on 15 December 2012 and it will then be open for public discussion until 16 January 2013. Its adoption by the Parliament followed by its promulgation are scheduled to take place between 17 January and April 2013.

In addition, the authorities started to take organisational measures to facilitate the collection of data on the files that are pending at local and central levels. These measures concern in particular the identification of files (the creation of a comprehensive database is underway), as well as the swift processing of compensation claims (the allocation of supplementary human resources at the level of the competent central authority is envisaged to this end).

Application

Case

Judgment of

Final on

30767/05

MARIA ATANASIU AND OTHERS

12/10/2010

12/01/2011

57001/00

STRĂIN AND OTHERS GROUP (list of the cases)

21/07/2005

30/11/2005

Decisions

The Deputies

1. recalled that the issues raised in these cases concern a large-scale systemic problem, due to the dysfunctions of the Romanian system of restitution or compensation in respect of property nationalised during the Communist period;

2. recalled also that the Court granted the Romanian Government an extension until 12 April 2013 of the time-limit set by the pilot judgment Maria Atanasiu and others for the adoption of measures capable of affording adequate redress to all the persons affected by the reparation laws;

3. noted that the Romanian authorities are currently improving the draft law on the reform of the reparation mechanism, taking into account the observations comprised in the memorandum of the Secretariat (CM/Inf/DH(2012)18); reiterated that the envisaged solutions, in particular the level of compensation and the timetable for its payment in instalments, should be justified in an objective manner, on the basis of accurate and comprehensive data;

4. noted also the revised calendar for the completion and adoption of the draft law; underlined that it is absolutely necessary that the authorities comply with it, to ensure that the new time-limit set by the Court for the execution of the pilot judgment is observed;

5. invited the authorities to present to the Committee the final version of the draft law and the justifications of the measures it contains, as soon as possible;

6. noted with interest the organisational measures taken or envisaged by the authorities with a view to establishing the current state of the on-going compensation and restitution process and accelerating the processing of pending claims; noted however, with regret, that the authorities are still unable to present to the Committee comprehensive consolidated data on the current state of this process and reiterated their invitation to the authorities to complete without delay the transmission of these data;

7. decided, given the urgency to make progress in the execution of the judgments in this group of cases, to continue its examination at their 1164th meeting (March 2013).

ROMANIA

Application 33810/07

Judgment final on 28/11/2011

ASSOCIATION '21 DECEMBRE 1989'GROUP v. Romania

Enhanced procedure : complex problem

Reference texts

Revised Action plan (19/10/2012) DH-DD(2012)1000F

Action plan DH-DD(2012)98F

DH-DD(2012)98addF (Restricted, confidential additional information)

Communication from the authorities – translation of the draft amendments to the statutory framework in the field of secret surveillance measures (English only) DH-DD(2012)1063

Communication from a NGO and reply from the government DH-DD(2012)190E

Communication from Mrs Elena Vlase (applicant) (04/07/12) and response from the authorities (24/07/12) (DH-DD(2012)824)

Decision adopted at the 1136th meeting

Case description: 1. This case concerns the ineffectiveness of the criminal investigation into the violent crackdown on the December 1989 anti-governmental protests, during which the son of the applicants, Nicolae and Elena Vlase, was killed, and which took place in Bucharest, Braşov and various other cities of Romania (procedural violation of Article 2).

The investigation - initiated in early 1990 - concerns the use of lethal force, the ill-treatment and the deprivations of liberty of thousands of civil protesters in December 1989, before and in the aftermath of the overthrow of Nicolae Ceauşescu. It concerns former high-ranking military and civil officials.

More than a hundred similar applications are pending before the European Court, which indicated under Article 46 of the Convention, that “it is for the respondent State to put an end to the situation at issue in the present case, found by it to be in breach of the Convention, affecting the right of many persons concerned, as the individual applicants, to an effective investigation, not to be terminated by effect of statutory limitation on criminal liability, considering also the importance for Romanian society to know the truth about the events of December 1989” (§194 of the judgment).

2. The case further concerns the lack of safeguards in Romanian legislation in the field of secret surveillance measures in cases of alleged threat to national security, in particular as regards the collecting and storing of personal data by the Romanian Intelligence Service (violation of Article 8 in respect of Mr Teodor Mărieş).

Status of execution: On 19 October 2012, the authorities presented a revised action plan on the individual and general measures in this case.

Individual measures: Violation of Article 2: as regards the progress of the criminal investigation, see under “General measures” below. On 31 May 2012, upon an inquiry from the applicant (Mrs Vlase) on the progress of the proceedings, the prosecutor’s office provided her with the same information as that presented to the Committee in the action plan (see DH-DD(2012)824).

Violation of Article 8: Information is still awaited on the status of the data concerning the applicant Mărieş which was collected and stored by the authorities under a statutory framework that does not comply with the Convention's requirements.

General measures: Violation of Article 2: as the Court noted, the finding of a procedural violation of Article 2 in this case originates in a large-scale problem, considering that several hundred persons are involved as injured parties in the criminal proceedings at issue. As announced by the authorities at the March 2012 DH meeting, Law No. 27/2012, which came into force on 19 March 2012, repealed the statutory limitations in respect of offences against life. Under the transitional provisions laid down by this law, the exclusion of statutory limitations is applicable to investigations that were pending at the time the law came in to force. According to the revised action plan, the prosecutor’s office attached to the High Court of Cassation and Justice is completing the investigation, the majority of the circumstances of the case having been clarified. The last procedural measure mentioned in the action plan was taken in June 2011.

Violation of Article 8: in the framework of a major penal reform, the Ministry of Justice opened for public debate on 1 October 2012 a draft law aimed at amending in particular the laws challenged in this case (Law No. 51 of 29 July 1991 on national security and Law No. 14 of 24 February 1992 on the organisation and operation of the Romanian Intelligence Service). This phase of the legislative process precedes the transmission of the draft law to Parliament. The amendments proposed aim at remedying the lack of safeguards for the respect of private life in the challenged legislation, found by the European Court in the present case and also in the cases of Rotaru (28341/95) and Dumitru Popescu (No. 2) (71525/01). The translation into English of these amendments was presented to the Committee on 8 November 2012 (DH-DD(2012)1063).

Application

Case

Judgment of

Final on

33810/07+

ASSOCIATION “21 DECEMBRE 1989”

24/05/2011

28/11/2011

1157th meeting - Notes

The investigation at issue in this case presents undeniably a complex character. The European Court, however, underlined the fact that its political and social significance could not in itself justify either the length of the investigation or the manner in which it had been conducted over a significant period of time. On the contrary, “its importance for Romanian society […] should have encouraged the authorities to deal with the case promptly and without needless delays, in order to avoid any appearance of impunity for certain acts” (§142 of the judgment).

For its part, the Committee of Ministers underlined in the decision adopted at the 1136th meeting (DH) (March 2012) the need for the Romanian authorities to adopt without delay the necessary measures to ensure that the impugned investigation is carried out with the required speed and diligence. It should be recalled that at this meeting, the authorities had already indicated that the investigation was on the point of being finalised by the prosecutor’s office and that a decision was expected at the earliest opportunity.

The revised action plan submitted on 19 October 2012 provides only general information on the investigation, which does not show any progress since the last examination of this case by the Committee.

At this juncture, it appears important that the Committee acquires a more precise view on the current state of progress of the investigation by being provided in particular with an assessment of the authorities on the obstacles faced by the prosecutor’s office and with information on the manner in which the prosecutor’s office envisages overcoming them, with a view to completing this stage of the investigation with the required speed and diligence.

Also, from the perspective of the progress expected in the investigation, it is worthwhile underlying the importance that the victims’ next-of-kin continue to be involved in the proceedings to the full extent necessary to safeguard their legitimate interests (see §§140 and 141 of the judgment, where the Court found in this respect that deficiencies in the investigation had occurred in the past).

As regards the envisaged amendments to the statutory framework in the field of secret surveillance measures, the information provided is to be welcomed. The manner in which these amendments take into account the European Court’s findings and meet the need to provide sufficient safeguards for the respect of the private life remains to be assessed. Without prejudging this assessment, the Committee might wish to be provided already at this stage with an indicative timetable for the adoption of these amendments.

In the light of the above, it is proposed to the Deputies to adopt the draft decisions below:

Decisions

The Deputies

1. recalled that the present case raises complex problems related, first to the ineffectiveness of the criminal investigations into the crackdown on the anti-government protests of December 1989 in Bucharest and other cities of Romania and secondly to the lack of statutory safeguards for the protection of private life in the field of secret surveillance measures in cases of alleged threat to national security;

2. took note of the revised action plan provided by the Romanian authorities on 19 October 2012;

3. noted, as regards the individual measures, that information is still needed on the status of the data concerning the applicant Mărieş which was collected and stored by the authorities, and invited the authorities to provide this information without delay;

On the investigations into the events of December 1989

4. expressed their concern at the lack of progress in the investigation at issue in the instant case and urged the authorities to provide their assessment on the obstacles in the investigation, as well as information on the measures taken to overcome such obstacles and speed up the investigation;

5. invited the authorities to ensure that the victims’ next-of-kin, including the applicant Mrs Vlase, shall continue to be involved in the investigation to the full extent necessary to safeguard their legitimate interests;

On the statutory framework in the field of secret surveillance measures

6. noted with interest the amendments envisaged to the statutory framework in the field of secret surveillance measures, which remain to be assessed in detail, and invited the authorities to provide an indicative timetable for the adoption of these amendments;

7. decided to take stock of the progress achieved in this case at one of their next meetings.

ROMANIA

Application 42344/07

Judgment final on 07/09/2011

PREDICA v. Romania

Enhanced procedure : Complex problem

Reference texts

Action plan (29/06/2012) DH-DD(2012)674E

Revised Action plan (24/10/2012) DH-DD(2012)1005E

Case description: 1) This case concerns the violent death of the applicant's son which occurred in 2003 while he was serving a custodial sentence at the Rahova High Security Penitentiary (substantial violation of Article 2).

2) It also concerns the ineffectiveness of the criminal investigation launched by the authorities in 2003, which has failed to provide a plausible explanation into the circumstances of the death of the applicant's son and has not led to the identification of the persons responsible (procedural violation of Article 2).

The European Court found that the effectiveness of the investigation had been compromised by the failure of the investigative authorities to comply with court orders indicating the evidence to be taken and the circumstances that required clarification, among which the involvement (reported by witnesses) of masked-equipped members of the special intervention unit attached to the Rahova Penitentiary.

It also criticised the fact that in its initial phase, the investigation was conducted by the military prosecutors, whose institutional independence had been challenged on many occasions by the Court; the initial refusal of the investigating authorities to acknowledge a suspicious and violent death; the lack of sufficient public scrutiny and safeguards for the interests of the next-of-kin, as the applicant was not informed or consulted about any proposed evidence or witnesses and did not receive sufficient information about the progress in the investigation.

At the date of the judgment, the investigation was pending before the Bucharest judicial police.

3) The case further concerns the lack of an effective remedy in domestic law allowing the applicant to claim damages, in the absence of an effective criminal investigation (violation of Article 13).

Status of execution: On 29 June 2012, the Romanian authorities submitted an action plan, followed on 24 October 2012 by a revised version.

Individual measures: the prosecutor’s office attached to the Bucharest county court took over the investigation at issue in this case from the judicial police. Since 2011, in compliance with the court orders, the prosecutor heard an important number of witnesses. So far, the investigation has not been completed yet, due in particular to difficulties in identifying the persons responsible. The prosecutor in charge of the case shall determine the measures that can be taken to overcome this obstacle. It is however underlined that the time elapsed since the death occurred and the fact that some of the witnesses changed their initial statements make the continuation of the investigation difficult.

The prosecutor organised a new hearing of the applicant, who did not request taking further evidence. In a communication dated 25 September 2012, the applicant on his part specified that he had not received any indication from the authorities on the progress of the proceedings and on the course of action envisaged by the prosecutor’s office.

General measures: the authorities indicated that awareness-raising measures (publication and dissemination of the judgment) were taken as regards the prosecutors; the other general measures that might be necessary for the execution of the judgment will be determined by the authorities in the light of the conclusions of the criminal investigation pending in this case.

This information requires to be supplemented with an assessment of the authorities on the need to take further measures to enhance the effectiveness of the investigations into the death of inmates occurred within the penitentiary system. The assessment of the authorities as regards the violation of Article 13 found in this case is also awaited.

Application

Case

Judgment of

Final on

42344/07

PREDICA

07/06/2011

07/09/2011

1157th meeting - Notes

As regards the individual measures, the revised action plan presented by the authorities on 24 October 2012, outlines positive developments in this case: the investigation is now conducted by civil prosecutors, which complies with the requirements of both institutional and practical independence from the involved persons; the investigative authorities no longer question the conclusions of the forensic reports as regards the violent nature of the death; measures were taken by the prosecutor’s office to comply with the court orders as regards the evidence to be taken and circumstances to be clarified; the applicant had the possibility to propose new evidence during his second hearing by the prosecutor.

While noting that difficulties may arise from the time elapsed since the facts occurred and the initial deficiencies in the investigation, it would be useful to know if a clear perspective for the completion of the investigation by the prosecutor’s office can be presented. Moreover, it remains to be ensured that, in addition to his hearing by the prosecutor’s office and the possibility offered to him to propose evidence, the applicant is provided with sufficient information on the progress of the investigation.

As regards the general measures, at this juncture, the Committee should be provided with more detailed information on the measures envisaged in response to the Court’s findings under the procedural limb of Article 2 and under Article 13.

The general measures that the authorities might be called upon to adopt as regards the substantial violation of Article 2 found in this case are intrinsically linked to the outcome of the pending investigation. Indeed, the conclusions of the investigation as regards the circumstances surrounding the death of the applicant’s son will allow both determining the need for general measures and targeting them.

In the light of the above, it is proposed to the Deputies to adopt the decision hereafter.

Decisions

The Deputies

1. took note of the action plan submitted by the Romanian authorities on 29 June 2012 and noted with satisfaction the additional information contained in the revised action plan presented on 24 October 2012;

2. noted, however, that the information submitted, while indicating positive developments in the conduct of the ongoing investigation into the death of the applicant’s son, does not offer a clear perspective for its completion;

3. encouraged the authorities to identify and implement rapidly the measures that can still be taken so that the investigation can be completed rapidly;

4. encouraged moreover the authorities to ensure that the applicant is involved in the investigation to the full extent necessary to safeguard his legitimate interests;

5. noted, as regards the general measures, that additional information is awaited at this stage on the measures needed to remedy the dysfunctions found under Articles 2 (procedural limb) and 13 of the Convention;

6. decided to resume the consideration of all these questions, in the light of a revised action plan to be submitted rapidly by the Romanian authorities.

RUSSIAN FEDERATION

Application 39417/07

Judgment final on 27/12/2011

ALIM v. the Russian Federation

Proposal to transfer under enhanced procedure - urgent individual measures

Reference texts

Communication from the Russian Federation (03/10/2012) DH-DD(2012)897E

Case description: Violation of the right to respect for the applicant’s family life , a Cameroonian national, in the event of his expulsion which would result in his separation from his children, born in 2005 and 2006 respectively, and living in the Russian Federation (Article 8). Following his arrest in January 2007 for breaching regulations for foreigners, a court fined him and ordered his removal from Russia.

Status of execution: On 3/10/2012 the Russian authorities provided an action report on the execution of this case (DH-DD(2012)897).

Individual measures: On 27/06/2012, the Supreme Court of the Russian Federation quashed the part of the judgment delivered against the applicant as far as his expulsion is concerned.

The action report contains some information concerning contacts between the Federal Migration Service and the applicant related to regularising his situation. However, this information does not allow to have an overview of the applicant’s current situation.

General measures: the Court’s judgment was published and disseminated to all relevant authorities. The Russian authorities further referred to the constant practice of the Supreme Court of the Russian Federation according to which domestic courts must take into account matters relating to family life when deciding on administrative removal.

Application

Case

Judgment of

Final on

39417/07

ALIM

27/09/2011

27/12/2011

1157th meeting - notes

It should be noted that the Supreme Court drew the necessary conclusions from the Court's judgment by quashing the part of the domestic judgment which concerned the applicant’s removal. However, the action report submitted by the Russian authorities does not dispel doubts as to the continuing risk of the applicant’s removal in breach of the Convention requirements. In particular, no information has been provided on the concrete measures taken by the Federal Migration Service following the judgment of the Supreme Court. It seems that in the current circumstances the applicant's situation should be urgently clarified.

The Committee should therefore receive without further delay concrete information on the measures taken by the authorities to regularise the applicant’s situation. It would consequently be appropriate for the Committee that pending such information to consider the question of individual measures under the enhanced supervision procedure.

Decisions

The Deputies

1. recalled that in the present case the Court found that there would be a violation of Article 8 of the Convention if the applicant, the father of two minor children, were to be expelled from the Russian Federation;

2. noted that the judicial decision ordering his expulsion had been quashed;

3. noted however with concern that it is still unclear whether concrete measures have been taken to regularise the applicant’s situation with a view to eliminating any risk of his removal from the Russian territory in violation of the requirements of the Convention;

4. therefore urged the Russian authorities to take such measures and to inform the Committee accordingly without delay;

5. decided, in the light of the foregoing, to pursue their supervision of the execution of this judgment under the enhanced supervisory procedure.

RUSSIAN FEDERATION

Application 29157/09

Judgment final on 08/03/2012

LIU No. 2 v. the Russian Federation

+ LIU AND LIU

Enhanced procedure : Urgent individual measures

+ Proposal to transfer the case of Liu and Liu from standard to enhanced procedure (complex problem)

Reference texts

Communication from the Russian Federation (22/10/2012) DH-DD(2012)999E

Case description: The case concerns the right to family life of four applicants: the husband, a Chinese national, his wife and their two minor children, all three Russian nationals. From 2003, the first applicant has been illegally present in Russian territory. This situation was due to the authorities’ refusal to grant him a residence permit on the ground that he posed a risk to national security. The lawfulness of this refusal was confirmed by the domestic courts following the examination of classified materials. This judicial decision constituted an obstacle to the legalisation of his immigration status and resulted in the domestic courts ordering his administrative removal. This decision was executed in November 2009.

The Court first noted that the domestic courts’ examination of the classified materials indicating that the first applicant constituted a threat to national security was not attended by adequate procedural safeguards and that such threat was not convincingly established. The Court further found that the removal of the first applicant was disproportionate because the domestic courts failed to take into account his family situation. Consequently, the Court concluded to a violation of the applicants’ right to family life (violation of Article 8).

Status of execution: On 22/10/2012 the Russian authorities presented an action plan/action report on the execution of this judgment.

Individual measures: The Russian authorities indicated that Russian legislation provides for a possibility to request the reopening of proceedings following a judgment of the Court. No such requests have been lodged by the applicants.

General measures: The Court’s judgment was published and disseminated to all relevant authorities. The Russian authorities also provided examples of the domestic courts’ practice demonstrating that the personal circumstances and in particular family situation of persons subject to administrative removal or deportation are taken into account by the courts. The action plan/action report indicates that further measures to comply with the judgment are being considered by the authorities.

Application

Case

Judgment of

Final on

29157/09

LIU No. 2

26/07/2011

08/03/2012

42086/05

LIU AND LIU

06/12/2007

02/06/2008

1157th meeting – Notes

The Committee might note that this is the second case concerning the same applicants.

1) The first judgment adopted by the Court on 6 December 2007

In its first judgment, the Court examined whether the deportation order issued against the first applicant on the ground that he posed a risk to national security was compatible with Article 8 of the Convention. The Court noted that the implementation of this decision would violate the Convention since it was taken by the executive authorities and it was not clear whether there was a possibility of appealing against that decision to a court or another independent authority offering guarantees of an adversarial procedure and competent to review the reasons for that decision and relevant evidence, including the classified materials gathered by the secret services.

2) Supervision by the Committee of the execution of the first judgment

In the framework of its supervision, the Committee noted that the deportation decision concerning the first applicant was quashed and that the request for the reopening of proceedings made by the applicants was granted by the courts. The Russian authorities indicated that the courts would consider the classified materials gathered by the secret services to justify that the first applicant posed a risk to national security and rule on the lawfulness of the refusal to grant him a residence permit. They also indicated that the measures were taken to ensure that the first applicant could personally participate in these proceedings.

After having reviewed the classified materials and having heard the applicants, the Khabarovsk Regional Court concluded that the refusal to issue a residence permit to the first applicant on the ground that he posed a risk to national security was lawful. On 20 May 2009, this decision was upheld by the federal Supreme Court, thereby impeding the regularisation of the situation of the first applicant. He was then brought before the administrative judge who ordered his removal from Russia. He was removed in November 2009.

3) The second judgment of the Court

On 3 June 2009, the applicants lodged a second application before the Court.

The Court noted that the domestic re-examination of the case gave rise to new issues under the Convention which, in the absence of any assessment by the Court, may not be resolved in the context of the Committee’s supervision of execution of the first judgment (§67 of the judgment).

Two issues in particular deserved a new examination by the Court, namely:

    a) procedural guarantees available to the applicants in the proceedings concerning the risk posed by the first applicant to national security

The Court observed that some procedural defects indicated in its first judgment had been corrected in the framework of the execution of that judgment. However, the Court also noted that, in doing so, the domestic authorities adopted an approach that could only be described as formalistic (§ 91 of the judgment). Given that the domestic proceedings were not attended by sufficient procedural guarantees, the Court was unable to accept the judgment of the national courts that the first applicant was a danger to national security.

    b) proportionality of the first applicant’s removal

In this respect, the Court concluded that the administrative removal of the first applicant was disproportionate because the administrative judge did not take into account his family situation. The Court specifically noted that under Russian law the first applicant may not re-enter Russia for a period of five years after his removal.

4) Outstanding issues

In view of the findings of the Court, it is a matter of concern that the action plan/report provided by the Russian authorities contains no indication of the concrete measures taken in favour of the applicants. The mere fact that the applicants have not requested the reopening of proceedings does not relieve the authorities of their obligation to take individual measures. All the more so that, under the law, in addition to the applicants, the prosecutor also has a possibility to request the reopening of proceedings following a judgment of the Court.

Consequently, the Russian authorities should be invited to urgently provide information on the concrete measures taken to eliminate the consequences of the violation for the applicants.

Finally, the Russian authorities should also be invited to submit an action plan which also sets out the general measures required by the two Court’s judgments.

Decisions

The Deputies

1. deeply regretted that the authorities’ attitude, in the framework of execution of the first judgment, and qualified as formalistic by the Court, has given rise to a second judgment finding a violation;

2. noted that in its second judgment, the Court concluded that the threat to national security had not been convincingly established, and that the removal of the first applicant was disproportionate;

3. considered, in the light of the foregoing, that it is imperative that, in accordance with Article 46, paragraph 1 of the Convention, the Russian authorities take without delay, the necessary measures to eliminate the consequences of the violation for the applicants;

4. considered also that it is imperative that the Russian authorities provide an action plan outlining the measures taken and/or envisaged to prevent similar violations;

5. decided to join the case of Liu and Liu to the case of Liu No. 2 with a view to their examination under the enhanced supervision procedure and to resume consideration of these cases at their next DH meeting.

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

Communication from a NGO (27/09/2012) DH-DD(2012)1026E

Action plan (10/10/2012) DH-DD(2012)1009E

Communication from the Russian Federation (16/11/2012) DH-DD(2012)1072E

Decision adopted at the 1150th 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 highlighted by the Committee of Ministers and acknowledged by the Russian authorities. The Court underlined that the structural nature of this widespread problem results in 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 held 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: Individual measures: Non-pecuniary damage sustained by the applicants was compensated by the Court through the just satisfaction.

On 16/11/2012 the Russian authorities provided information on the detention conditions of the applicants (DH-DD(2012)1072). The information provided is currently being assessed, in particular with regard to the detention conditions of Mr Ananyev. A detailed assessment in this respect will be provided for the 1164th meeting DH (March 2013).

General measures: On 10/10/2012, that is within the time-limit set by the European Court, the Russian authorities submitted a detailed action plan (“interim action plan/report”), including information on the time frame for the setting up a combination of effective remedies having preventive and compensatory effects (DH-DD(2012)1009).

Application

Case

Judgment of

Final on

42525/07+

ANANYEV AND OTHERS

10/01/2012

10/04/2012

1157th meeting - Notes

On 10 October 2012 the Russian authorities submitted a detailed action plan on measures required by the pilot judgment. This action plan is articulated around three main chapters:

    - Measures aimed at ensuring a more balanced approach toward the choice of a preventive measure for suspects and persons accused of having committed a criminal offence, including measures aimed at a wider recourse to alternative measures to detention;

    - Measures aimed at further improvement of material conditions of detention;

    - Measures aimed at the setting up of domestic compensatory and preventive remedies and at further improvement of the existing ones.

For each of these chapters, the Russian authorities outlined the measures already taken since the adoption by the Committee of Ministers in the context of the Kalashnikov group of cases of the last Interim Resolution (CM/ResDH(2010)35). They further indicated the measures envisaged together with a time-table for their adoption and the domestic authorities responsible for this.

As regards the introduction of the domestic remedies required by the pilot judgment, it is observed that the Russian authorities are currently working out different approaches. The action plan contains concrete proposals under each of the envisaged approaches with a description of the legislative and regulatory amendments required. It is expected that such remedies would be available to all persons detained notwithstanding the place of their detention, i.e. remand centres, temporary detention facilities attached to the Ministry of the Interior and places where convicts are serving their sentences.

Given the complexity of the matter, the Russian authorities requested the assistance of an international expert who should shortly provide them with an overview of the practice existing in other countries. This cooperation is carried out in the framework of the HRTF 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”.

It is planned that a final choice of the approach to be adopted will be made by February 2013, in particular in the light of the expert’s conclusions. It is then expected to prepare and to submit to Parliament the necessary draft laws by the end of 2013.

As regards persons who may currently be detained in poor detention conditions, the Russian authorities indicate that pending the adoption of these reforms, measures are being taken to provide such persons with a possibility to obtain compensation on the basis of the already existing provisions as interpreted in the light of the Convention. The action plan contains examples of judicial practice to this effect. The Supreme Court is taking measures to encourage further development of this practice.

As regards similar applications pending before the Court, the Russian authorities confirm their readiness to continue their efforts aimed at the ad hoc settlement of such applications. Their efforts have already resulted in the striking out of some applications (see Decisions delivered in Dmitrenko and others against Russian Federation (No. 10403/04) and Tkachenko and others against Russian Federation (No. 44888/05)).

In view of the above, it would appear that the action plan presented by the Russian authorities is prima facie consistent with the findings of the Court and the Committee’s decisions and resolutions. In particular, it could be noted that the action plan is based on a coordinated and comprehensive approach to the resolution of this structural problem, as has been advocated on several occasions by the Committee of Ministers.

A more thorough assessment of all measures suggested in the action plan will be made for one of the Committee’s next DH meetings.

Finally, the Russian authorities should be invited to rapidly provide information on individual measures which may be required 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. welcomed the timely submission by the Russian authorities of an action plan, as required by the pilot judgment;

3. noted with satisfaction that the action plan is based on a comprehensive and long-term strategy for the resolution of the structural problem identified by the Court;

4. encouraged the Russian authorities to implement all measures outlined in the action plan and in particular measures aimed at the introduction of domestic remedies;

5. encouraged in addition the Russian authorities to continue their efforts with a view to resolving similar applications pending before the Court;

6. decided to resume consideration of the issue of individual measures at their 1164th meeting (March 2013) (DH) in the light of the assessment to be made by the Secretariat;

7. decided further to resume consideration of the issue of general measures at one of their next DH meetings in 2013 in the light of the assessment to be made by the Secretariat and of the information to be provided by the authorities on the progress made in the setting-up of domestic remedies.

RUSSIAN FEDERATION

Application: 38411/02

Judgment final on: 30/01/2008

GARABAYEV GROUP v. Russian Federation

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

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

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

Letter from the Registry (Latipov) DH-DD(2012)1046E

Decision adopted at the 1136th meeting

Decision adopted at the 1144th meeting

Decision adopted at the 1150th 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.

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). At their last meeting (September 2012), the Deputies noted with regret that to date no-one responsible for the applicant’s illegal transfer to Tajikistan has been identified in the Iskandarov case.

General measures: As regards the Iskandarov case, at its 1136th (March 2011) and 1144th (June 2012) meetings, the Committee expressed its concerns, notably in view of the fact that other similar incidents have taken place in respect of five other applicants whose applications are pending before the Court (see the letter from the Registry of the Court DD(2012)214 and a NGOs’ submission DH-DD(2012)422). 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)489).

At their 1150th meeting (September 2012), the Deputies 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.

However, on 9/11/2012 the Registry of the Court indicated that another applicant who was subject to an interim measure has apparently disappeared (see the letter from the Registry of the Court DH-DD(2012)1046).

As regards other measures required by this group of cases, the Russian authorities have already provided detailed information on the measures adopted and planned (for more details see DH-DD(2012)152E and DH-DD(2012)755). The Ministry of Justice is currently preparing a draft law which should be finalised before the end of the year. The Committee is expected to assess the progress of this reform at one of its forthcoming meetings.

GARABAYEV GROUP

Application

Case

Judgment of

Final on

38411/02

GARABAYEV (list of cases)

07/06/2007

30/01/2008

1157th meeting – Notes

In the Iskandarov case, the applicant was kidnapped in April 2005, was subjected to an unacknowledged detention and transferred to Tajikistan although his extradition had been officially refused by the General Prosecutor’s Office. The Court found that his kidnapping and illegal transfer to Tajikistan were attributable to Russian State agents.

On 26 January 2012 the Court indicated that since the Iskandarov case, it was confronted with repeated incidents of this kind concerning four other applicants whose cases are pending before the Court where it indicated interim measures to prevent their extradition on account of the imminent risk of grave violations of the Convention faced by them (see the letter from the Court DD(2012)214). In the letter, the President of the Court declared himself particularly concerned about the implications of these developments for the authority of the Court and possible continuation of such unacceptable incidents in cases of other applicants. The Court also invited the Russian authorities to address this worrying and unprecedented situation and to provide exhaustive information on the follow-up given to these incidents in the Russian Federation.

On 18 April 2012 a new incident of this kind was reported (see DH-DD(2012)422).

On 14 May 2012, the Russian authorities provided an additional action report on the dissemination to all relevant authorities of the decision adopted by the Committee at its 1136th DH meeting. The circular letters accompanying this dissemination underlined the need to prevent any attempt of forcible removal of persons subject to an interim measure indicated by the Court (DH-DD(2012)489).

In the meantime, the Russian authorities continued to deny their involvement into the Mr. Iskandarov’s kidnapping and transfer. In doing so, they referred to the results of the domestic investigation carried out into the circumstances of his kidnapping. However, it should be recalled that the Deputies have already expressed their regret with regard to the lack of progress of this investigation.

It is noted that the Russian authorities adopted the same position in respect of at least one other incident (see Abdulkhakov, judgment of 2 October 2012, not yet final). In this case, the applicant disappeared from Moscow and was subsequently found in detention in Tajikistan. The Court noted that it seriously doubts that unidentified kidnappers could have led the applicant through passport and customs checks in the Domodedovo airport without the consent of competent officials (§ 125).

On 9 November 2012 the Court forwarded to the Committee of Ministers a letter from the applicant’s representative in the case of Latipov concerning the applicant’s abduction by “unidentified intelligence agencies” in Volgograd on 20 October 2012. His whereabouts remain unknown. The applicant’s extradition has previously been requested by Tajikistan. Although the extradition request was partially granted by the Russian authorities, the extradition proceedings were suspended due to the Court’s decision to apply an interim measure under Rule 39 of its Rules.

Decisions

The Deputies

1. recalled that in abiding by a Court’s judgment, the State party has an obligation to take all measures to prevent violations similar to those found by the Court;

2. consequently deeply regretted that, notwithstanding the serious concerns expressed by the Court and by the Committee of Ministers in respect of incidents allegedly similar to that in the Iskandarov judgment, they were informed that yet another applicant, who was subject to an interim measure indicated by the Court under Rule 39 in connection with his planned extradition to Tajikistan, would have disappeared from Volgograd on 20 October 2012 (Latipov v. Russian Federation, No. 77658/11);

3. noted that such incidents, if confirmed, and lack of appropriate response thereto by the authorities would raise a more general issue as to the compatibility of this situation with the obligations of the Russian Federation under the Convention;

4. reiterated their regret expressed in their earlier decision 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;

5. consequently called upon the Russian authorities to address without further delay this worrying and unprecedented situation, notably by adopting protective measures in respect of other persons who may be subject to an interim measure indicated by the Court under Rule 39 in connection with their removal from the Russian territory and ensuring that all such incidents are effectively investigated in strict compliance with their Convention obligations;

6. invited the Russian authorities to provide information on the applicant’s current situation in the Iskandarov case, in particular as far as guarantees against ill-treatment are concerned.

SERBIA

Application 3102/05

Jugdment final on 21/09/2007

EVT COMPANY group v. Serbia

Enhanced procedure: Complex problem

Reference texts:

Information document CM/Inf/DH(2010)25

Action plan (April 2011) DH-DD(2011)297

Action plan Updated information (July 2011) DH-DD(2011)548E

Updated action plan (15/10/2012) DH-DD(2012)970E

Communication from Serbia (April 2011) DH-DD(2011)549

Decision adopted at the 1086th meeting (p. 212)

Decision adopted at the 1120th meeting

Case description: These cases concern violations of the applicants’ right to access to a court on account of non-enforcement of final court or administrative decisions concerning socially-owned companies, commercial matters, civil matters, family-related matters and eviction or demolition orders in respect of unauthorised constructions (violations of Article 6 § 1). The majority of these cases also concern violations of the applicants’ right to the peaceful enjoyment of their property (violations of Article 1 Protocol No. 1) or the right to respect for their family life (violations of Article 8) as well as lack of an effective remedy (violations of Article 13).

Status of execution: Individual measures: Majority of the domestic court decisions in this group of cases have been enforced. Information is awaited on the measures taken to enforce the domestic decisions in the cases of EVT Company and Kostić.

General measures:

Measures taken with respect to enforcement of domestic court decisions rendered against socially-owned companies: The Committee of Ministers noted in its decisions adopted at the 1086th meeting (June 2010) and 1120th meeting (September 2011) that the issue of non-enforcement of domestic court decisions rendered against socially-owned companies was a major issue of concern because the number of similar applications lodged with the Court has been increasing steadily. The Committee therefore encouraged the Serbian authorities a) to identify the number of unenforced decisions; b) to determine the amount of aggregate debt concerned and c) to take the necessary measures to ensure the settlement of this debt. The measures taken by the Serbian authorities in response to these decisions are summarised below:

a) Number of unenforced decisions: The Serbian authorities introduced a regulation in March 2012 in order to register the final decisions ordering socially-owned companies to pay employment arrears. According to this regulation, anyone who obtained a final decision could register his or her decision with the national authorities until 5 August 2012. This deadline was subsequently extended until 31 December 2012 because of the large number of registration applications filed (55 000 applications were filed as of September 2012). The Serbian authorities indicated that the registration process will therefore be completed until the end of the year.

b) Amount of aggregate debt: Since the registration process has not been concluded, it was not possible to determine the exact amount of aggregate debt.

c) Measures taken for the settlement of this debt: The Ministry of Finance and Economy will propose solutions for the settlement of the debt to be determined by the end of March 2013.

Introduction of a remedy in respect of unenforced decisions concerning socially-owned companies: Following the European Court’s finding that the constitutional appeal was not an effective remedy in respect of non-enforcement of decisions rendered against socially-owned companies (Milunović and Čekrlić, appl.no.3716/09*, decision of 17/05/2011), the Serbian authorities introduced legislative amendments in 2011 in order to ensure that holders of such decisions can claim compensation before the Constitutional Court in respect of pecuniary and non-pecuniary damages. Following these legislative amendments, the Constitutional Court changed its case-law and, in a decision rendered on 19 April 2012, it awarded compensation in respect of pecuniary damages (the applicant in that case did not claim non-pecuniary damages).

Other measures:

a) Enforcement of decisions in respect of demolition orders. The Serbian authorities determined the number of unenforced final demolition orders as 20 682. The authorities indicated that these demolition orders had not been executed because of lack of funds and parallel pending proceedings aimed at legalising unauthorised constructions concerned.

b) Measures concerning private bailiffs. Following the entry into force of the new Enforcement Act (May 2011), 32 regulations have been adopted and a number of organisational measures were taken in order to make the private bailiffs service operational.

EVT COMPANY GROUP

Application

Case

Judgment of

Final on

3102/05

EVT COMPANY

(list of cases)

21/06/07

21/09/07

1157th meeting - Notes:

Scope of the problem with respect to socially-owned companies: It is noted with concern that the number of similar applications lodged with the European Court is increasing rapidly. In a letter of 22 June 2012 (DD(2012)4 add2) the Registrar of the European Court informed the Committee of Ministers that there were 5 436 repetitive cases pending in respect of Serbia as of 1 June 2012. 1 600 of these cases concerned socially-owned companies. According to statistics obtained on 4 October 2012, the number of pending applications related to socially-owned companies has climbed to 2 250 cases (in other words, 650 new applications have been lodged in less than four months).

Despite the growing number of similar applications lodged with the Court, it appears from the information provided by the Serbian authorities that the exact number of unenforced decisions has still not been established. Consequently, it was not possible to take any measures to determine the amount of debt and set up a payment scheme.

The legislative measures introduced in order to create a remedy before the Constitutional Court is an encouraging development. It is important to note in this respect that, in order to satisfy the Convention requirements, compensation to be awarded by the Constitutional Court should cover both pecuniary and non-pecuniary damages (§§62-65, Milunović and Čekrlić, appl.no. 3716/09, decision of 17 May 2012). In addition, it would be useful if the Serbian authorities could provide information on the efficiency of the constitutional remedy, in particular as to whether the decisions in which the Constitutional Court awarded compensation are enforced.

Other measures:

Regarding the enforcement of demolition orders, it is noted that the Serbian authorities identified the number of unenforced decisions. However, no measures have been taken in order to ensure that these decisions are enforced. The Serbian authorities are therefore invited to take measures to ensure that these decisions are enforced with the aim of preventing future potential applications to the European Court.

Regarding the measures taken concerning private bailiffs, it is noted that the private bailiff service was introduced when the Enforcement Act came into force in May 2011 (see, memorandum CM/Inf/DH(2010)25 for the measures taken in this respect). It is recalled that Serbian authorities asked for an expert opinion on this law prior to its adoption within the context of the Human Rights Trust Fund Project “on removing the obstacles to the non-enforcement of domestic court judgments / ensuring an effective implementation of domestic court judgments” and that a round table was organised in January 2011 with the top officials from the Ministry of Justice. A number of experts’ proposals have been subsequently integrated into the draft law. The organisational measures aimed at making private bailiffs operational are therefore a positive step forward in creating conditions for efficient enforcement proceedings. It should be clarified whether the new Enforcement Act and, in particular, introduction of private bailiffs will have an impact on the enforcement of decisions already rendered.

Decisions

The Deputies

1. noted with concern that the number of repetitive applications concerning the non-enforcement of domestic court decisions rendered against socially-owned companies lodged with the European Court has been increasing rapidly (around 2400 applications currently pending);

2. noted further that, despite certain efforts made by the Serbian authorities, no concrete progress has yet been achieved in finding a comprehensive solution to this problem;

3. strongly invited the Serbian authorities to intensify their efforts with a view to preventing the influx of new similar applications before the European Court, in particular through establishing the exact number of unenforced decisions concerning socially-owned companies and the amount of aggregate debt as well as the setting-up of a payment scheme by the end of March 2013 at the latest;

4. invited the Serbian authorities to provide information on the efficiency of the constitutional remedy modified in 2011, in particular with respect to the enforcement of decisions rendered against socially-owned companies;

5. as regards other measures needed, encouraged the Serbian authorities (i) to take concrete action to ensure that a solution is found to settle the issue of enforcement of demolition orders, and (ii) to provide concrete information on the impact of the new Enforcement Act and, in particular, the introduction of the system of private bailiffs, on the enforcement of decisions already rendered;

6. as to the outstanding individual measures, invited the Serbian authorities to provide as soon as possible concrete information regarding the steps taken to enforce the domestic decisions in the cases of EVT Company and Kostić.

SERBIA

Application 31925/08

Jugdment final on 24/09/2012

GRUDIĆ v. Serbia

Enhanced procedure: Complex problem

Reference texts:

Case description: The case concerns a violation of the applicants’ right to peaceful enjoyment of their possession in that the payment of their pensions earned in Kosovo* was suspended by the Serbian Pensions and Disability Insurance Fund (SPDIF) for more than a decade in breach of the relevant domestic law (violation of Article 1 of Protocol No. 1).

In view of the large number of potential applicants, the European Court indicated under Article 46 that the Serbian authorities had to take all appropriate measures to ensure that the relevant laws were implemented in order to secure payment of the pensions and arrears in question within six months from the date on which the judgment became final (this deadline will expire on 24/03/2013) (§99 and §3(d) of the operative part of the judgment). The European Court also noted that certain reasonable and speedy factual and/or administrative verification procedures might be necessary in this regard.

Status of execution: Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage sustained. It also indicated that the Serbian authorities had to pay to the applicants the pecuniary damage suffered, namely their pensions due as of 9 June 1999 and 15 January 2000, respectively, together with statutory interest (§92).

General measures: As indicated by the European Court, “the respondent Government must, within six months from the date on which the judgment becomes final […], take all appropriate measures to ensure that the competent Serbian authorities implement the relevant laws in order to secure payment of the pensions and arrears in question, it being understood that certain reasonable and speedy factual and/or administrative verification procedures may be necessary in this regard” (§3(d) of the operative part of the judgment).

Application

Case

Judgment of

Final on

31925/08

GRUDIĆ

17/04/2012

24/09/2012

1157th meeting - Notes

Scope of the problem: In June 1999 Kosovo4 was placed under international administration and the Serbian pensions system ceased to operate in the territory (§64). Since 1999, persons employed in Kosovo* have ceased paying their insurance contributions to the SPDIF.

Payments of pensions in Kosovo* were suspended on the basis of two Opinions of the Ministry for Social Affairs and the Ministry of Labour, Employment and Social Policy, which have never been published in the Official Gazette. It was stated in these Opinions that, since the Serbian authorities had been unable to collect any pension contributions in Kosovo* as of 1999, persons who have been granted SPDIF pensions in Kosovo* also could not expect, for the time being, to continue receiving them (§29). Pursuant to the decisions of the Constitutional Court and the Supreme Court, payment of pensions earned in Kosovo* could not be suspended in accordance with these Opinions since these legal Opinions did not have any legal basis (§80).

As far as the scale of the problem is concerned, the Government noted that the total amount of the potential debt involving situations such as the applicants’ would be over 1 billion EUR (§71).

The findings of the European Court in this case: Although the European Court did not apply the pilot judgment procedure in this case, it nevertheless set a deadline to the Government of Serbia to take the necessary measures. This deadline will expire on 24 March 2013. Bearing in mind the deadline set by the Court, the Serbian authorities are expected to provide as soon as possible an action plan setting out the measures taken and/or envisaged to execute this judgment.

Decisions

The Deputies

1. noted that the European Court found a violation of the applicants’ right to peaceful enjoyment of their possession on account of unlawful suspension of payment of pensions earned in Kosovo5;

2. noted further that the European Court, in view of the large number of potential applicants, decided to indicate to the Government of the respondent State that it “must, within six months from the date on which the judgment becomes final […], take all appropriate measures to ensure that the competent Serbian authorities implement the relevant laws in order to secure payment of the pensions and arrears in question, it being understood that certain reasonable and speedy factual and/or administrative verification procedures may be necessary in this regard”;

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

4. invited also the Serbian authorities to provide information on the payment to the applicants of pension arrears due together with statutory interest.

SLOVAK REPUBLIC

Application: 33809/08

Judgment final on: 24/09/2012

LABSI v. the Slovak Republic

Enhanced procedure: complex problem

Reference texts:

Action plan DH-DD(2012)1013

Case description: This case concerns the applicant’s expulsion from Slovakia to Algeria on 19 April 2010, where he faced a real risk of being subjected to treatment contrary to Article 3. In this respect, the European Court highlighted inter alia the risk of ill-treatment to which individuals who, like the applicant were suspected of terrorist activities, were exposed when in the hands of the Algerian Department of Intelligence and Security (DRS) (violation of Article 3).

The expulsion occurred despite a Rule 39 indication from the European Court that the applicant should not be expelled to Algeria. The Court indicated that following the expulsion, the level of protection that it was able to afford the applicant was irreversibly reduced and it was prevented from protecting the applicant against treatment contrary to Article 3 (violation of Article 34).

The case also concerns lack of access to the Constitutional Court, as the applicant’s immigration claim in Slovakia ended in a refusal to grant him asylum by the Supreme Court on Friday, 16 April 2010 and he was expelled on Monday, 19 April 2010. The European Court found that as the applicant was expelled only one working day after being served with the judgment of the Supreme Court and the fact that a complaint to the Constitutional Court had no suspensive effect, the applicant was deprived of the practical possibility of using the constitutional remedy prior to his expulsion (violation of Article 13).

Status of execution: Individual measures: The applicant was convicted of terrorist offences in Algeria in 2005, in absentia. Following his expulsion to Algeria he was reported to have been detained by the DRS for twelve days before being transferred to prison awaiting trial (§§43-47 and 130). In a verbal note of 5 April 2011, the Algerian Embassy in Vienna informed the Slovak authorities that the applicant had been convicted of terrorist offences in Algeria on 12 January 2011. Both the prosecution and applicant’s counsel appealed the judgment on 17 January 2011.

On [24] October 2012, the Slovak authorities submitted an Action plan indicating that according to the Algerian Embassy in Vienna, the applicant was liberated in May 2012, having served his sentence and that today he is “free and enjoying all his constitutional rights” (see DH-DD(2012)1013).

General measures: The Action plan submitted by the Slovak authorities includes a general declaration that the Ministry of Interior will respect any other interim measures issued in the future by the European Court (see Annex No.2 to the Action plan).

It is also indicated that information concerning the violation of Article 13 will be provided in an update to the Action plan, to be submitted.

Application

Case

Judgment of

Final on

33809/08

LABSI

15/05/2012

24/09/2012

1157th meeting - Notes:

Urgent information was needed in this case on the current situation of the applicant, who was expelled to Algeria where he faced a real risk of being subjected to treatment contrary to Article 3. The information submitted by the Slovak authorities on the applicant’s current situation lifts any urgent aspect of the individual measures.

The information rapidly provided on the general measures needs to be completed with an update to the Action plan, notably in respect of the finding of a violation of Article 13.

Accordingly, the Deputies may wish to adopt the decision set out below.

Decisions

The Deputies

1. noted the information submitted by the Slovak authorities, according to which, the applicant was liberated on May 2012, and the assurances given that “he is free and enjoying all his constitutional rights”;

2. noted in respect of the general measures the declaration by the authorities that they will respect any other interim measure issued in the future by the European Court and that information in response to the violation of Article 13 found by the Court will be provided in an update to the Action plan;

3. decided to re-examine the case in light of the updated action plan.

TURKEY

Application 25781/94

Judgment final on 10/05/2001

Cyprus v. Turkey

Enhanced procedure : interstate case

Reference texts:

Interim resolutions ResDH(2005)44, CM/ResDH(2007)25

Information document on the issue of property rights of displaced persons CM/Inf/DH(2010)21,

CM/Inf/DH(2010)36

Information document on the issue of property rights of persons living in the northern part of Cyprus CM/Inf/DH(2009)39

Information document on the follow up by the Committee and the classification of the cases CM/Inf/DH(2011)32

Records from the 1086th meeting (June 2010) (confidential)

Records from the 1128th meeting (December 2011) (confidential)

Records from the 1136th meeting (March 2012) (confidential)

Public notes 1092nd meeting (September 2010) (page 16)

Information submitted by the Turkish authorities

DH-DD(2012)523 (24/05/2012) (property rights of persons living in the northern part of Cyprus, missing persons)

DH-DD(2012)997E (24/10/2012) (property rights of persons living in the northern part of Cyprus)

DH-DD(2012)1136 (04/12/2012) (property rights)

Information submitted by the Cypriot authorities

DH-DD(2010)275E (25/05/2010) (property rights of persons living in the northern part of Cyprus)

DH-DD(2011)1075 (25/11/2011) (property rights of displaced persons and of persons living in the northern part of Cyprus)

DH-DD(2011)1079E (29/11/2011) (confidential) (property rights of displaced persons)

DH-DD(2012)259E (01/03/2012) (property rights of displaced persons and of persons living in the northern part of Cyprus)

DH-DD(2012)525 (25/05/2012) (missing persons)

DH-DD(2012)905E (property rights of persons living in the northern part of Cyprus)

DH-DD(2012)1107 (26/11/12) (enclaved persons)

CM/Inf/DH(2012)37 - Synthesis of the information submitted on the issue of property rights of persons living in the northern part of Cyprus, prepared by the Secretariat

Decision adopted at the 1136th meeting (March 2012)

Decision adopted at the 1144th meeting (June 2012)

Case description: Fourteen violations in relation to the situation in the northern part of Cyprus since the military intervention by Turkey in July and August 1974 concerning:

- home and immovable property of displaced Greek Cypriots (violation of Article 8 and 13 and Article 1 of Protocol No. 1)

- living conditions of Greek Cypriots in Karpas region of the northern part of Cyprus (violation of Articles 3, 8, 9, 10 and 13 and Articles 1 and 2 of Protocol No. 1)

- Greek-Cypriot missing persons and their relatives (violation of Articles 2, 3 and 5)

- rights of Turkish Cypriots living in northern part of Cyprus (violation of Article 6).

Status of execution: I. Issues currently examined by the Committee of Ministers

1) Home and immovable property of displaced Greek Cypriots

a) Measures taken by the respondent state and findings of the European Court in this respect

Following the judgment of 22/12/2005 in the Xenides-Arestis case, an "Immovable Property Commission" was set up under "Law No. 67/2005 on the compensation, exchange or restitution of immovable property". In its judgment in application of Article 41 in the Xenides-Arestis case, the Court found that "the new compensation and restitution mechanism, in principle, has taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and the judgment on the merits of 22 December 2005". However, the Court also pointed out that "the parties failed to reach an agreement on the issue of just satisfaction where, like in the case of Broniowski against Poland (…) it would have been possible for the Court to address all the relevant issues of the effectiveness of this remedy in detail".

In its inadmissibility decision in the Demopoulos and 7 other cases delivered on 5 March 2010 the Grand Chamber found that Law 67/2005, which set up the Immovable Property Commission in the northern part of Cyprus, "provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Greek Cypriots" (§127 of that decision).

b) Assessment of the Committee of Ministers

At the June and September 2010 meetings, the Committee examined the question of the consequences of the Grand Chamber's inadmissibility decision in the Demopoulos case.

For more details on the positions expressed in that regard, see the Records of the June 2010 meeting (confidential document CM/Del/Act/DH(2010)1086final) and the information document CM/Inf/DH(2011)32. The Secretariat's assessment of this issue is presented in two information documents, namely CM/Inf/DH(2010)21 and CM/Inf/DH(2010)36.

c) Latest examinations by the Committee of Ministers

At the December 2011 meeting, the delegation of Cyprus requested the Committee of Ministers to suspend its examination of this question until the Court has pronounced itself on their recent application under Article 41 of the Convention. The Committee took note of this request and decided to continue their discussion on this question at their March 2012 meeting (DH). During the March 2012 Meeting, the Deputies recalled that the Court had been seised of a request under Article 41 of the Convention in this case and decided to resume consideration of this question at their June 2012 meeting (DH). In June 2012, they noted that there have been no new developments on this issue.

2) Property rights of Greek Cypriots residing in the northern part of Cyprus

a) Measures taken by the respondent state

- As regards the cases of permanent departure from the north of Greek Cypriots, the Turkish authorities indicated that a new decision of the "Council of Ministers of the TRNC", was adopted in February 2008 on the basis of the "Housing, Land distribution and Special Property Law, No. 41/77". According to the Turkish authorities, under this decision Greek Cypriots who reside in Karpas would continue to enjoy their property after their departure from the "TRNC" as long as they continued to maintain minimal contacts with their property or/and ties with the Karpas community. It seems that permanent departure from the "TRNC" is defined according to the transfer of permanent residence from the north to the southern part of Cyprus. Several criteria are taken into account to establish an intention to transfer permanent residence, such as workplace, family ties, participation in public life, financial investments, home, as well as other similar indicators (see letter b) of this decision. According to the Turkish authorities, in practice, Greek Cypriots who have left Karpas can retain ownership of their property if they continue to have family ties in the "TRNC" or if for example they have a bank account there. In the case that such contacts are not maintained, Greek-Cypriot residents of Karpas, who have left the north will have the possibility to transferring their property to persons of their choice, providing that they start the transfer procedure within one year of their departure from the north. Furthermore, the Turkish authorities indicated that persons permanently departing from the north have the possibility of applying to the "Immovable Property Commission" (established on the basis of the "Law 67/2005 on the immovable property") in order to obtain an evaluation of their properties, with a view to receiving compensation or an exchange of property.

- As regards the inheritance rights of persons living in the south in respect of property in the north of deceased Greek Cypriots, the Turkish authorities indicated that, at present, such rights may be exercised without any restriction. The obligation on heirs to start the procedure for administration of their estates situated in the north within a time limit of a year from the date of the death of their relative has been abolished. According to the decision of the "Council of Ministers of the TRNC" of February 2008 quoted above, the inheritance rights of these persons are subject to the rules applicable, according to the terms of the decision, to the "citizens of the TRNC".

Once administration of the estate has been completed, the heirs can enjoy their property on the same terms as those persons who have permanently left Karpas and who continue to maintain minimal contact with their properties and/or links with the Karpas community. The heirs can also directly file an application directly with the "Immovable Property Commission", with a view to obtaining compensation or an exchange of property. According to the Turkish authorities, there is no time limit for such applications to the "Commission". They have also indicated that this "Commission" has already delivered five decisions relating to such situations (decisions Nos. 2/2006, 3/2006, 4/2006, 7/2006 and 25/2006).

b) Assessment of the Committee of Ministers

In December 2008 (1043rd meeting), the Committee noted with satisfaction that, according to the Turkish authorities' explanations, restrictions on the property rights of Greek Cypriots who have permanently left the northern part of Cyprus had been relaxed, as had those affecting inheritance rights of those living in the southern part of Cyprus in respect of property in the northern part belonging to deceased Greek Cypriots. In September 2009, the Committee took note of the information document prepared by the Secretariat on this issue (CM/Inf/DH(2009)39) and noted that a certain number of questions still need to be examined in depth. To this effect, the Committee invited the Turkish authorities to provide a copy of the entirety of the legislation as amended and related decisions relevant for the examination of this issue, in particular the entire text of Law No. 41/77.

The Turkish authorities provided the following texts : 1) the entirety of "Law 41/77" in Turkish along with an English translation of certain sections (articles 1-4, 7-8, 72A and 97); 2) the entirety of "Law 52/2008 on the acquisition of property and long leases (law on foreigners)", along with the English translation of articles 9 and 15; 3) the whole of the "Constitution of the TRNC" in Turkish along with and English translation of article 152; 4) the whole of decision 518/2008 of the "Council of Ministers of the TRNC" from February 2008 in Turkish and English.

In March 2010, the Committee noted that the Cypriot delegation considered that it should have at its disposal additional documents in order to be able to assess this issue and offered to explain in writing the reasons why additional documents seem indispensable for this delegation (these documents are enumerated in the decision adopted by the Committee at its 1078th meeting, March 2010).

At the same meeting, the Committee decided to resume consideration of this issue at its June 2010 meeting (DH) with a view to assessing the relevance of the texts requested by the Cypriot delegation for the examination of this question. The Cypriot Delegation provided information on this issue on 21/05/2010 (see DH-DD(2010)275E of 25 May 2010). At the December 2011 meeting, the Committee decided to continue their discussion of the question of the property rights of enclaved Greek Cypriots at the March 2012 meeting (DH).

c) Latest examinations by the Committee of Ministers

During the March 2012 meeting, the Deputies took note of the detailed information provided by the Cyprus delegation (DH-DD(2012)262) and the detailed clarification provided by the Turkish delegation during the debate. They invited the latter to provide them in writing. They also invited the Secretariat to prepare a synthesis of this information with a view to examining the matter if possible at their September 2012 meeting (DH). On 24 May 2012 the Turkish delegation submitted a note concerning this issue (DH-DD(2012)523). Additional information was submitted by the Cypriot authorities and by the Turkish authorities, respectively on 4 and 24 October 2012 (see respectively DH-DD(2012)905E and DH-DD(2012)997).

3) Greek Cypriot missing persons and their relatives

a) Work of the Committee on Missing Persons in Cyprus (CMP)

The delegation of Turkey has always underlined the importance of the CMP, stressing the efforts of Turkey to contribute to the work of this committee. The CMP was reactivated in 2004 and August 2006 it launched its Exhumation and Identification Programme. Since this programme was launched, the remains of 853 missing persons from both sides have been exhumed. To date, the remains of 330 persons have been identified and returned to their relatives (see the CMP activity report on <http://www.cmp-cyprus.org>).

The Turkish authorities stated that the families of missing persons might obtain certain information on the occasion of the return of their relative's remains (in particular where the body had been found, any signs of trauma on the remains, etc.) Furthermore, anthropological and DNA reports are given to the families (letter of the Turkish authorities of 28/02/08). The anthropological report contains information in particular on the place where the remains were found. A special information unit for the families has functioned since 2004, within the Office of the Turkish Cypriot Member of the CMP.

The number of exhumation teams (composed of members of both communities) increased from four to eight.

b) Assessment of the Committee of Ministers

- Importance of the CMP's work for the execution of the present judgment

The Committee has reiterated several times its evident interest in the CMP's work and underlined the importance of preserving data and material items obtained within the framework of the Exhumation and Identification Programme. The Committee has regularly invited the Turkish authorities to take concrete measures to ensure the CMP's access to all relevant information and places, without impeding the confidentiality essential to carrying out its mandate.

- Need for further measures

The Committee has on several occasions reaffirmed the need for the Turkish authorities to take additional measures so that the effective investigations required by the judgment could take place (see in particular the decisions adopted since the 1035th meeting, September 2008). In this context, the Committee noted that in its Varnava against Turkey judgment (judgment of the Grand Chamber of 18/09/09) the European Court acknowledged the importance of the CMP's activities for exhumation and identification of remains and gave full credit to the work being done in providing information and returning remains to relatives. It noted, however, that while the CMP's work was an important first step in the investigative process, it was not sufficient to meet the respondent state's obligation under Article 2 to carry out effective investigations (see §189 of this judgment).

- Sequential approach

At the meeting of March 2009 (1051st meeting), the Committee had an exchange of views with the three members of the CMP on different issues relating to the execution of their mandate. At the conclusion of this exchange of views, the Committee considered in particular that it was crucial that the current work of the CMP should be carried out under the best possible conditions and without delay. In consequence, while reaffirming that the execution of the judgment requires effective investigations, the Committee noted that these should not jeopardise the CMP's mission. The Committee considered that the sequence of the measures to be taken within the framework of the effective investigations and carrying out of the work of the CMP should take into consideration these two essential aims.

In March 2010, the Committee noted with satisfaction that, according to the information provided, the Turkish authorities had acceded to several requests from the CMP for access to places situated in military zones and insisted on their request that the Turkish authorities inform them already now of the concrete measures envisaged in the continuity of the CMP's work with a view to the effective investigations required by the judgment.

At the December 2011 meeting, the Committee “renewed with insistence their calls on the Turkish authorities to ensure the CMP’s access to all relevant information and places without impeding the confidentiality essential to the carrying-out of its mandate, to inform [it] of the measures envisaged in the continuity of the CMP’s work with a view to the effective investigations required by the judgment and to provide responses to the questions posed by the Committee”.

During their March 2012 meeting (DH), the Deputies notably “reiterated their call to the Turkish authorities to give the CMP access to all relevant information and places and to take concrete measures with a view to effective investigations; in this context, [they] took note with interest of the information provided by the Turkish delegation during the debate [and] considered that the information provided called for in-depth assessment; [they] invited the Turkish authorities to provide them in writing, together with any other relevant information on these issues [and] decided to resume consideration of this question at their 1144th meeting (June 2012).” The Turkish delegation submitted information on 24/05/2012 (DH-DD(2012)523) and the Cypriot delegation – on 25/05/2012 (DH-DD(2012)525).

c) Latest examination by the Committee of Ministers

At their June 2012 meeting (DH), the Deputies notably “encouraged the steps undertaken following the identification by the CMP of missing persons while underlining the urgency to make further progress in the process of effective investigations into deaths of persons identified”. They also “called on the Turkish authorities to adopt a proactive approach as regards effective investigations into the fate of persons who are still missing and reiterated their request to obtain further concrete information on the steps taken by the authorities aimed at giving the CMP and investigative officers access to all relevant information and places, in particular concerning military zones”. Furthermore, the Deputies noted that a certain number of questions are raised in this context and invited the Turkish authorities to provide replies to all the questions raised by the Committee.

II. Issues whose examination has been closed:

Following the measures adopted by the authorities of the respondent state with a view to complying with the present judgment, the Committee of Ministers decided to close the examination of the following issues:

1) living conditions of the Greek Cypriots living in northern Cyprus, as regards secondary education, the censorship of schoolbooks and the freedom of religion,

2) rights of Turkish Cypriots living in northern part of Cyprus (competence of the military courts).

For more details, see Interim resolutions ResDH(2005)44 and CM/ResDH(2007)25.

Application

Case

Judgment of

Final on

25781/94

CYPRUS AGAINST TURKEY

10/05/2001

Grand Chamber

Decisions

The Deputies

Concerning questions regarding the property rights of displaced persons

1. recalled that the Court had been seized of a request under Article 41 of the Convention in the case of Cyprus against Turkey;

2. decided to resume consideration of these questions at their 1164th meeting (March 2013) (DH);

Concerning questions regarding the property of enclaved persons

3. took note of the synthesis of the information provided by the Cypriot authorities and Turkish authorities (CM/Inf/DH(2012)37), prepared by the Secretariat;

4. urged the two delegations concerned to provide, in due time for their 1164th meeting (March 2013), all relevant further information concerning property rights of enclaved persons, including answers in writing to the questions raised during the debate;

5. in this context, invited the Turkish delegation to provide in particular the information booklet concerning property rights of enclaved persons and their heirs, to which it made reference during the meeting;

6. decided to resume consideration of these questions at their 1172nd meeting (June 2013) in the light of a synthesis and an updated assessment by the Secretariat;

Concerning questions regarding missing persons

7. recalled the decisions taken at their 1144th meeting (June 2012), took note of the information provided at the meeting and decided to resume consideration of these questions at their 1164th meeting (March 2013) (DH).

TURKEY

Application 16064/90+

Judgment final on 18/09/2009

VARNAVA AND OTHERS v. Turkey

Enhanced procedure: complex problem

Reference texts:

Last public notes and decision adopted (1086th meeting, page 34)

Communication from the applicants’ representative DH-DD(2012)1012 (25/10/2012)

Decision adopted at the 1144th meeting

Case description: Failure to conduct effective investigations into the fate of nine Greek Cypriots who had disappeared during the military operations carried out by Turkey in Cyprus in 1974 (violation of Article 2); inhuman treatment of the relatives of the missing persons due to the authorities' silence in face of their real concerns (violation of Article 3); and the failure to conduct effective investigations into the whereabouts of two of the nine missing men, in respect of whom there has been an arguable claim that they had been detained at the time of their disappearance (violation of Article 5).

Status of execution: The individual and general measures required in this case are linked to the measures examined within the framework of the Cyprus against Turkey case.

Application

Case

Judgment of

Final on

16064/90+

VARNAVA AND OTHERS

18/09/2009

Grand Chamber

Decisions

(see under Cyprus against Turkey)

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

Communication from the authorities (29/10/12) DH-DD(2012)1015

Decision adopted at the 1150th 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. However, the draft law was not adopted in July 2012. The Turkish authorities therefore 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.

The authorities indicated that this second draft law will be brought before Parliament within the scope of the “Fourth package” of draft laws which will contain draft laws aiming at prevention of human rights violations.

On 23 October 2012 the authorities informed the Committee that the Turkish Government was planning to submit the “Fourth package” of draft laws to Parliament before the end of 2012. The authorities will inform the Committee when the draft text is submitted to Parliament. It is noted in this respect that, when the draft text is submitted to Parliament, it will first be examined by the Justice Commission, and then, will be brought before the General Assembly. The authorities are of the opinion that the discussions to be held before the Justice Commission in public will facilitate the adoption of the draft law.

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

1157th meeting - Notes:

Description of the alternative draft law prepared by the Turkish authorities: The alternative draft law prepared by the Turkish authorities 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. According to the new text, requests for reopening of proceedings can be made within three months after the draft law enters into force. The draft law is not applicable to the cases in which a request for reopening had already been rejected by Turkish courts following an examination made on merits and to the cases in which the Committee of Ministers had closed its examination following the adoption of a final resolution. Although the alternative draft law does not lift the time restriction that prevented the applicants to request reopening of proceedings in their cases, the applicants will still be able to request reopening because their cases are covered by the conditions set out in the draft law (i.e. their cases were under the supervision of the Committee of Ministers as of 15 June 2012 and require reopening of proceedings as an individual measure) (the text of the draft law can be found in DH-DD(2012)851). It is considered that the draft law, if adopted, would constitute an adequate response to the execution of the judgments in this group of cases, as well as other cases that are examined by the Committee of Ministers which require reopening of proceedings as an individual measure.

Decisions

The Deputies

1. noted that the draft law allowing the reopening of proceedings in the applicants’ cases will be submitted to the Turkish Parliament before the end of 2012 within the context of the “Fourth package” of draft laws; it will be first examined by the Justice Commission and then brought to the General Assembly;

2. considered that the draft law, if adopted, would constitute an adequate response to the execution of the judgments in the Hulki Güneş group of cases, as well as other cases that are examined by the Committee of Ministers which require reopening of proceedings as an individual measure;

3. strongly encouraged the Turkish authorities to keep the Committee informed of the legislative process and, in any event, to bring it to an end without any further delay.

TURKEY

Application 39437/98

Judgment final on 24/04/2006

ÜLKE GROUP 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

Action plan in Erçep, Savda and Feti Demirtaş (29/10/12) DH-DD(2012)1019

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

Communication from the applicant's representative DH-DD(2012)844E

Communication from the authorities DH-DD(2012)791

Communication from the authorities (29/10/12) DH-DD(2012)1014

Decision adopted at the 1150th meeting

Case description: These cases concern the applicants’ repetitive convictions and prosecutions for having refused to carry out compulsory military service on account of their religious beliefs or convictions as pacifists and conscientious objectors.

In the cases of Ülke, Savda and Feti Demirtaş the Court found that the applicants’ repetitive convictions and prosecutions amounted to a violation of Article 3 of the Convention.

In the cases of Erçep, Savda and Feti Demirtaş, the Court found that the Turkish authorities have failed to comply with their positive obligation under Article 9 of the Convention because they did not make available to the applicants an effective and accessible procedure which would have enabled them to have established whether they were entitled to conscientious objector status. The Court also noted in this respect that there was no alternative service to compulsory military service in Turkey.

In the cases of Erçep, Savda and Feti Demirtaş, the Court found a violation of Article 6 § 1 of the Convention because the applicants, as civilian conscientious objectors, were tried and convicted by military courts.

Status of execution: Individual measures:

Ülke: The applicant’s name was removed from the list of persons searched for by the police and the arrest warrant against him was lifted. The Turkish authorities gave assurances that the applicant can exercise his civic rights without hindrance, obtain a passport and travel abroad. However, an investigation against the applicant is still pending as a result of the legislation in force and there is a theoretical possibility that he could be subjected to further prosecution and conviction. Legislative measures should be taken to exclude any possibility of the applicant’s further prosecution and conviction (see the decision adopted by the Committee of Ministers at its 1150th meeting).

Erçep: The applicant was acquitted on all charges of draft evading in March 2011. In their decisions of acquittal, Turkish courts referred to the Convention requirements and the case-law of European Court as well as international standards concerning rights of conscientious objectors. However, the applicant is still under the obligation to pay an administrative fine for draft evading because draft evading is no longer categorised as a criminal offence but as an administrative felony following the legislative changes introduced in March 2011. The applicant is still under an obligation to carry out his military service in accordance with the current legislation but there is no arrest warrant or pending investigation against him.

Savda: The applicant is no longer under the obligation to carry out his military service as a consequence of a medical report issued in April 2008 finding that he was suffering from “anti-social behaviour” and therefore was not fit to carry out his military service (§32 of the judgment). There is no arrest warrant or pending investigation against the applicant.

Feti Demirtaş: The applicant is no longer under the obligation to carry out his military service as a consequence of a medical report issued in February 2007 finding that he was suffering from “anti-social behaviour” and therefore was not fit to carry out his military service (§56 of the judgment). However, on 16 May 2012, the applicant was convicted and sentenced to imprisonment for disobedience to a military order which was given on 1 December 2006 before the above-mentioned medical report was given. The applicant lodged an appeal against this decision. The appeal proceedings are still pending. There is no arrest warrant against the applicant.

General measures:

Legislative measures: In its decision adopted at the 1150th meeting (September 2012), the Committee of Ministers urged the Turkish authorities to take the necessary legislative measures with a view to preventing repetitive prosecution and conviction of conscientious objectors. The Turkish authorities informed the Committee on 23 October 2012 that consultations between the relevant authorities were on-going with the aim of identifying the general measures required to execute these judgments.

Training and awareness raising activities: The Turkish authorities drew the Committee’s attention to the project carried out with the Council of Europe on “Human Rights Training of Military Judges and Prosecutors”. The overall aim of the project is to improve the application of the Convention at domestic level through raising awareness of military judges and prosecutors on the Court’s case-law. It is expected that the activities carried within the context of this project (such as training and translation of relevant judgments of the European Court) will have an impact on the direct application of the Convention standards in Turkish law.

Measures concerning the violation of Article 6 of the Convention: No information has been provided in this respect.

Application

Case

Judgment of

Final on

39437/98

ÜLKE

24/01/2006

24/04/2006

43965/04

ERCEP

22/11/2011

22/02/2012

5260/07

DEMIRTAS

17/01/2012

17/04/2012

42730/05

SAVDA

12/06/2012

12/09/2012

1157th meeting – Notes:

Information provided with respect to individual measures: It appears from the information provided that there are no arrest warrant issued against the applicants. However, the applicants in the cases of Ülke and Erçep are still under the obligation to carry out their military service as a result of the legislation in force. There is also a theoretical possibility that they are subjected to further prosecution and conviction. In addition, the applicant in the case of Erçep is under the obligation to pay an administrative fine for draft evading. The applicants in the cases of Savda and Feti Demirtaş are no longer under the obligation to carry out their military service but the second applicant was convicted and sentenced to imprisonment for disobedience to a military order, although his conviction is not final yet.

Consequently, measures should be taken to ensure that the applicant in the case of Erçep is no longer under the obligation to pay an administrative fine and that the applicant in the case of Feti Demirtaş is no longer subjected to further prosecution and conviction.

Information with respect to general measures: As the Committee noted at its 1150th meeting, legislative measures should be taken with a view to preventing repetitive prosecution and conviction of conscientious objectors not only to exclude any possibility of the applicants’ further prosecution and conviction but also to prevent similar violations in the future. Legislative measures are also required to ensure that an effective and accessible procedure is made available to conscientious objectors in order to establish whether they are entitled to conscientious objector status. Lastly, information is awaited on the measures taken or envisaged in order to ensure that conscientious objectors are not tried before military courts in light of the findings of the European Court in the cases of Erçep, Savda and Feti Demirtaş.

Decisions

The Deputies

1. noted that there are no arrest warrants issued against the applicants in the Ülke group of cases for any crimes related to failure to carry out military service;

2. noted, however, with concern that the applicant in the case of Erçep is still under the obligation to pay an administrative fine draft evading and the applicant in the case of Feti Demirtaş was convicted and sentenced to imprisonment for disobedience to a military order, although his conviction is not final yet;

3. urged the Turkish authorities to take the necessary measures to ensure that the consequences of the violations found by the Court in these cases are completely erased for the applicants;

4. urged the Turkish authorities to take the necessary legislative measures with a view to preventing the repetitive prosecution and conviction of conscientious objectors and to ensuring that an effective and accessible procedure is made available to them in order to establish whether they are entitled to conscientious objector status;

5. invited the Turkish authorities to provide information to the Committee of Ministers on the measures taken or envisaged in order to ensure that conscientious objectors are not tried before military courts in the light of the findings of the European Court in the cases of Erçep, Savda and Feti Demirtaş.

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, complex 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

Communication from Ukraine DH-DD(2012)1065E

Communication from Ukraine DH-DD(2012)1139

Press release issued by the European Court on 29 February 2012

Decision adopted at the 1150th meeting

Case description: Important structural problem of non-enforcement/excessive length of enforcement of domestic judicial decisions, mostly delivered against the State, and the lack of an effective remedy in this respect (violations of Articles 6§1, 13 and Article 1 of Protocol No. 1). Pilot judgment delivered by the Court in October 2010 in the Yuriy Nikolayevich Ivanov case: The Court noted that specific reforms in Ukraine's legislation and administrative practice should be implemented without delay to resolve this problem and set a specific deadline to 15/07/2011 for the setting-up of an effective domestic remedy in this respect. 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 and the Yuriy Nikolayevich Ivanov pilot judgment at each of its Human Rights meetings since it became final. It adopted four Interim Resolutions so far.

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).

General measures: Given that the measures called for by the Court in its pilot judgment were not adopted within the deadline set, the Court decided in February 2012 to resume the examination of the frozen applications raising similar issues. In a letter by the Registrar of the Court to the Committee of June 2012 (DD(2012)4add2E), it was observed that there were some 2800 applications concerning non-enforcement of domestic judgments against Ukraine pending before the Court.

A new law “On State guarantees concerning execution of judicial decisions” was eventually adopted by Parliament on 5 June 2012 and will enter into force on 1 January 2013. This law introduces a new specific procedure for the execution of domestic judicial decisions delivered against the State which will be rendered after its entry into force: pecuniary debts are to be met by the State Treasury within certain deadlines if the debtor (State bodies, State companies, or legal entities whose property cannot be subjected to a forced sale within enforcement proceedings) fails to pay them in due time. The law also provides for automatic compensation if the authorities delay payments under this special procedure.

As regards the domestic judgments already delivered, including those complained of before the Court, the Ukrainian authorities submitted that they intend to resolve this problem by introducing another “special procedure”, which will be introduced in 2014. A separate draft law in this respect is being prepared.

In its first judgment delivered in July 2012 on the “defrozen” clone applications in the case of Kharuk and others (116 applications), the Court found violations identical to those at stake in the present group of cases and noted that the new law does “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.”

At its meeting in September 2012, the Committee deeply regretted 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. The Committee urged the Ukrainian authorities once again to take the necessary measures in order to resolve this problem as a matter of utmost urgency. It further requested that the concerns regarding the provisions of the new law set out in the memorandum CM/Inf/DH(2012)29 be addressed, in particular the question on the adequacy of compensation for enforcement delays and on budgetary arrangements for the new law.

On 1 November 2012, the Ukrainian authorities informed the Committee that the draft law for the above-mentioned “special procedure” had been approved by the Minister of Justice and was expected to be submitted to the Cabinet of Ministers in the near future. However, no details were mentioned on the content of this new draft legislation. The authorities also provided their comments on the questions raised in document CM/Inf/DH(2012)29.

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

Décision

The Deputies adopted Interim Resolution CM/Res/DH(2012)234 as it appears in document CM/Del/Dec(2012)1157, Volume of Resolutions.

Interim Resolution CM/ResDH(2012)234

Execution of the judgments of the European Court of Human Rights

Yuriy Nikolayevich Ivanov against Ukraine and the Zhovner group of 389 cases against Ukraine (list of cases) concerning the non-enforcement or delayed enforcement of domestic judicial decisions and the lack of an effective remedy in respect thereof

(Application No. 40450/04, judgment of 15/10/2009, final on 15/01/2010)

(Adopted by the Committee of Ministers on 6 December 2012

at the 1157th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”);

Having regard to the pilot judgment of the European Court of Human Rights (“the Court”) of 15 October 2009 in the case of Yuriy Nikolayevich Ivanov against Ukraine and 389 cases in the Zhovner group transmitted to the Committee for supervision of its execution under Article 46 of the Convention;

Recalling that since 2004, the Committee of Ministers has repeatedly called upon the Ukrainian authorities to adopt, as a matter of priority, the necessary measures in its domestic legal system (CM/ResDH(2008)1, CM/ResDH(2009)159, CM/ResDH(2010)222, and CM/ResDH(2011)184);

Recalling in this context that the new law of 5 June 2012 “on State guarantees concerning execution of judicial decisions” concerns, notwithstanding the pilot judgment, only future 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;

Recalling further its latest decision adopted in September 2012, in which the Committee urged the Ukrainian authorities once again to take the necessary measures in order to resolve this problem as a matter of utmost urgency, as well as to address the concerns set out in the memorandum CM/Inf/DH(2012)29 regarding the provisions of the new law;

Noting that in response to the Committee’s aforementioned decision, the Ukrainian authorities indicated that they have drafted the law On amendments to the Law of Ukraine On guarantees of the State concerning the execution of the court decisions aimed at resolving the problem of outstanding debts and which is currently under consideration by the Cabinet of Ministers of Ukraine;

Deeply regretting however that this draft law has not been introduced yet, and urging therefore the Ukrainian authorities to increase their efforts to swiftly bring the legislative process to an end;

Profoundly deploring that the pilot judgment therefore still remains to be fully executed and that this situation poses a serious threat to the respect of the rule of law and to the effectiveness of the Convention system;

Reaffirming most firmly that the High Contracting Parties to the Convention have undertaken to abide by the final judgment of the Court in any case to which they are parties and that this obligation is unconditional,

      URGES the Ukrainian authorities to adopt as a matter of utmost priority the necessary measures in order to resolve the problem of non-enforcement of domestic judicial decisions and to fully comply with the pilot judgment with no further delay;

      ENCOURAGES the Ukrainian authorities in particular to make increasingly use of unilateral declarations and friendly settlements in order to resolve the problem of cases pending before the Court.

UKRAINE

Applications: 34056/02

Judgments final on: 08/02/2006

GONGADZE v. Ukraine

Enhanced procedure: complex problem

Reference documents:

Interim Resolutions CM/ResDH(2008)35, CM/ResDH(2009)74

Updated information from the Ukrainian (13/05/2011) (individual measures) DH-DD(2011)376

Communication from Ukraine (27/01/2012) (individual measures) DH-DD(2012)125

Communication from Ukraine (13/02/2012) (individual measures) DH-DD(2012)172

Communication from Ukraine (31/05/2012) (individual measures) DH-DD(2012)752

Communication from Ukraine (16/08/2012) (individual measures) DH-DD(2012)826

Communication from Ukraine (15/11/2012) (individual measures) DH-DD(2012)1086

Decision adopted at the 1115th meeting

Case description: The authorities' failure, in 2000, to protect the life of the applicant's husband, a journalist known for his criticism of those in power, threatened by unknown persons, resulting in his abduction and death (violation of Article 2); lack of an effective investigation into his abduction and death due to the fact that the state authorities were more preoccupied with proving the lack of involvement of high state officials in the case than by discovering the truth (violation of Article 2); degrading treatment of the journalist's wife on account of the attitude of the investigating authorities (violation of Article 3); lack of an effective remedy in respect of the inefficient investigation and in order to obtain compensation (violation of Article 13).

Status of execution: The Committee has been examining this case since 2006, adopting two Interim Resolutions so far.

Individual measures: The criminal investigation into G. Gongadze’s death has continued after the Court’s judgment with a view to remedy the shortcomings identified by the Court. The major developments can be summarised as follows:

    · The criminal proceedings against the suspected perpetrators of the crime were concluded in 2008 and three police officers were convicted for abduction and murder of G. Gongadze.

    · In its Interim Resolution CM/ResDH(2008)35, the Committee noted this fact but expressed regret that the investigations to find the instigators and organisers had not been completed.

    · Subsequently, in a further Interim Resolution CM/ResDH(2009)74, the Committee could, however, note with satisfaction a number of developments, including notably the arrest of the superior of the perpetrators, O. Pukach, and the carrying out of a phonoscopic examination of the so-called “Melnychenko” tapes by a joint group of Ukrainian and foreign experts. In the light of the developments, the Committee strongly encouraged the authorities to enhance their efforts to bring the ongoing investigation to an end.

    · The criminal investigations in both the case against O. Pukach and former President L. Kuchma have eventually led to the institution of criminal proceedings; in this context the applicant and her representatives have been granted access to the case-files and allowed to participate actively in the hearings.

    · In its last decision of June 2011, the Committee noted with interest the criminal proceedings engaged against O. Pukach for a number of crimes, including the murder of G. Gongadze, and against L. Kuchma, the latter for abuse of power for having given unlawful orders to Y. Kravchenko (then-Minister of the Interior, who committed suicide in 2005) to use force against G. Gongadze.

In response to the Committee’s request for further information, the Ukrainian Government has indicated that an important number of hearings have been held by the first instance court in the case against the perpetrators’ superior O. Pukach.

In the context of the above proceedings, the criminal investigation in the case originally engaged against the deceased Minister of Interior, Y. Kravchenko, has been dissociated by the court from the proceedings in the Pukach case and sent back to the prosecutor for further investigations.

The government has further indicated that the prosecutor’s decision to institute criminal proceedings against former President Kuchma has been quashed by the courts for lack of sufficient legal grounds, a decision upheld by the High Specialised Court in Civil and Criminal Cases on 26 June 2012. Having examined all the evidence relied upon by the prosecutors, the courts held that the only ground for initiating proceedings had been the “Melnychenko” tapes. Referring to a decision of the Constitutional Court of 20 October 2011 on admissibility of evidence in criminal proceedings (delivered in response to a request lodged by the Security Service), the courts ruled that the tape-recordings could not be admitted as evidence against L. Kuchma as they had been obtained illegally without due authorisation.

The government has, however, informed the Committee that the prosecuting authorities continue their investigations to elucidate all circumstances of the crime with a view to finding all persons who might have been involved.

General measures: The general measures are being examined in the context of the Khaylo group of cases.

Application

Case

Judgment of

Final on

34056/02

GONGADZE

08/11/2005

08/02/2006

1157th meeting – Notes

The information received indicates that the authorities are continuing to deploy efforts in order to fully establish the facts surrounding the abduction and murder of G. Gongadze and to ensure that all responsible, including the instigators and organisers, are brought to justice.

In this context further information regarding the Ukrainian courts’ decision to quash the institution of criminal proceedings against former President Kuchma for lack of sufficient legal grounds appears of interest (for copies of the judicial decisions in English translation, see DH-DD(2012)1086). The information provided thus does not clarify how Ukrainian law ensures the balancing of the right to an effective investigation in order to bring those responsible before justice and the protection against illegally obtained evidence being used at trial.6 It would therefore be useful to receive further information on this issue, including a translated text of the Constitutional Court’s decision of 20 October 2011 relied upon by the domestic courts. In addition, information is required on the prosecutors’ assessment of the impact of this decision on the investigation relating to L. Kuchma.

Considering the time elapsed since the events, it appears of great importance that the Ukrainian authorities’ enhance their efforts to find the instigators and organisers of the killing of G. Gongadze and take all necessary investigatory measures to this end as a matter of urgency

In view of the outstanding questions, it is suggested that the Committee continues the examination of this case at one of its upcoming DH meetings, at the latest in June 2013.

Decisions

The Deputies

1. took note of the regular updates provided by the Ukrainian authorities as to the progress in the criminal investigations into the abduction and murder of G. Gongadze;

2. noted that the investigation efforts continue and that the trial against the superior of the three police officers already convicted continues before the first-instance court, with an important number of hearings having been held to elucidate the facts;

3. noted also that the domestic courts recently quashed the prosecutor’s decision to institute criminal proceedings against L. Kuchma on the grounds that the so-called “Melnychenko” tapes were inadmissible as evidence having been obtained illegally;

4. recalled in this context the Convention requirements and the Court’s case-law as regards the necessity of balancing the right to an effective investigation in order to bring those responsible before justice against other rights and interests, such as the right not to have illegally obtained evidence used at trial;

5. invited the Ukrainian authorities to provide the Committee with information on how Ukrainian law ensures this balancing, including a translated text of the Constitutional Court’s decision of 20 October 2011 relied upon by the domestic courts when dismissing the prosecutor’s decision to institute criminal proceedings against L. Kuchma and on the prosecutors’ assessment of the impact of this decision on the investigation relating to L. Kuchma;

6. insisted on the Ukrainian authorities’ obligation to continue their efforts to find the instigators and organisers of the killing of G. Gongadze and, considering the time elapsed, to enhance their efforts to ensure that all necessary investigatory measures to this end are taken as a matter of urgency;

7. decided to come back to the outstanding questions at the latest at their June 2013 meeting (DH).

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

Action Plan (23/11/2012) DH-DD(2012)1106

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 1150th meeting

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 1150th meeting (September 2012), the Committee underlined that according to §115 of the pilot judgment Greens and M.T., 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. It noted further that the European Court granted an extension to this deadline and that consequently, the United Kingdom authorities have until 23 November 2012 to comply with the pilot judgment.

§115 of the pilot judgment also states that the legislative proposals should be introduced “with a view to the enactment of an electoral law to achieve compliance with the Court's judgment in Hirst No. 2 according to any time-scale determined by the Committee of Ministers”.

An action plan was submitted on 23 November 2012 (see DH-DD(2012)1106).

The action plan states that on 22 November 2012, the Lord Chancellor and Secretary of State for Justice introduced to Parliament legislative proposals to amend the electoral law imposing a blanket restriction on voting rights of convicted prisoners in prison in the form of a draft bill (the Voting Eligibility (Prisoners) Draft Bill). A copy of the announcement is included with the Action plan. The draft bill is publicly available online (see Action plan for link).

The draft bill contains three proposals:

    - Option 1: a ban on voting for prisoners sentenced to 4 years or more,

    - Option 2: a ban on voting for prisoners sentenced to more than 6 months,

    - Option 3: a ban for all prisoners (i.e.re-enacting the existing blanket ban).

The next step is for the draft bill to be considered in a process called “pre-legislative scrutiny”. This means it will be reviewed by a specially appointed parliamentary committee. That committee will make public recommendations to government; then the government will introduce a finalised version of the bill to parliament for adoption.

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

1157th meeting - notes

In his announcement, the Lord Chancellor and Secretary of State for Justice recalled the Scoppola case, stating:In that judgment, the Court made clear that in its view the “margin of appreciation” afforded to Council of Europe member states to decide on how far prisoners should be enfranchised was wide – but confirmed its position that the complete bar was outside that margin”.

Section 58 of the Explanatory notes to the draft bill states that “to the extent that options 1 and 2 engage rights set out in the European Convention on Human Rights (ECHR), the Government is of the view that the provisions are, on balance, compatible with those rights. To the extent that option 3 engages rights set out under the ECHR, the Government is unable to say that the provisions are compatible with those rights”.

In this respect, when announcing the legislative proposals, the Lord Chancellor and Secretary of State for Justice said: “the Government is under an international legal obligation to implement the Court judgment [Hirst].” He also quoted the Attorney general, stating that “Parliament is sovereign in this area, nobody can impose a solution on Parliament, but the accepted practice is that the United Kingdom observes its international obligations. The Lord Chancellor also indicated that in its work “the Committee might want to reflect on the consequences for the rule of law and the United Kingdom’s international standing of Parliament’s ultimate decision”.

The action plan states that the government will continue the legislative process as soon as possible after the committee has completed its work, and keep the Committee of Ministers fully updated as the legislative process continues.

Decisions

The Deputies

1. recalled that in the judgment Hirst No. 2 and the Greens and M.T. pilot judgment the European Court found violations of Article 3 of Protocol 1 due to the blanket ban on voting imposed automatically on the applicants due to their status as convicted offenders detained in prison;

2. recalled further that the United Kingdom authorities had until 23 November 2012 to introduce legislative proposals to amend the electoral law imposing a blanket restriction on voting rights of convicted prisoners in prison;

3. noted with great interest that the United Kingdom authorities introduced legislative proposals to Parliament on 22 November 2012 to amend the electoral law imposing a blanket restriction on voting rights of convicted prisoners in prison, which include a range of options for a Parliamentary Committee to consider;

4. welcomed and strongly supported the announcement made by the Lord Chancellor and Secretary of State for Justice when presenting the legislative proposals to Parliament that “the Government is under an international legal obligation to implement the [European] Court’s judgment” and “the accepted practice is that the United Kingdom observes its international obligations”;

5. considered that the final version of the legislation that will be proposed to Parliament should be in conformity with the fundamental principles recalled in this announcement;

6. in this respect endorsed the view expressed in the Explanatory Report to the draft bill presenting the legislative proposals, that the third option aimed at retaining the blanket restriction criticised by the European Court cannot be considered compatible with the European Convention on Human Rights;

7. recalled that §115 of the pilot judgment states that the legislative proposals should be introduced “with a view to the enactment of an electoral law to achieve compliance with the Court's judgment in Hirst No. 2 according to any time-scale determined by the Committee of Ministers” and invited the authorities to keep the Committee regularly informed of progress made and on the proposed time-scale;

8. decided to resume consideration of the case at the latest at its 1179th meeting (September 2013) (DH) in the light of the above.

C. Classification of cases7

Item 1

Classification of new judgments which became final before 4 October 2012

Decisions

The Deputies

1. noted that the following judgments have become final before 4 October 2012, and decided to examine them under the standard procedure (list of cases);

2. decided to examine the following judgments under the enhanced procedure8: list of cases.

* * *

Item 1 bis

Transitional provisions
Classification of other cases pending before the entry into force of the new working methods

Decisions

The Deputies decided to resume consideration of the classification of this case at their 1164th meeting (March 2013) (DH):

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 classification9

(a) from standard to enhanced

See Alim case against the Russian Federation

See Liu and Liu case against the Russian Federation

(b) from enhanced to standard

No case.

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 ist

* * *

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

Draft 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

ALBANIA / ALBANIE

32907/07

GJYLI

29/09/2009

07/12/2010

29/12/2009

07/03/2011

DH-DD(2012)1090E

BELGIUM / BELGIQUE

50084/06

RTBF

29/03/2011

15/09/2011

DH-DD(2012)1035F

30812/07

TREVALEC

14/06/2011

28/11/2011

DH-DD(2012)1034F

8595/06

DE DONDER AND DE CLIPPEL

06/12/2011

06/03/2012

DH-DD(2012)1038F

CROATIA / CROATIE

5193/09

X. AND Y.

03/11/2011

03/02/2012

DH-DD(2012)998E

20883/09

AJDARIC

13/12/2011

04/06/2012

DH-DD(2012)1097E

FRANCE

9152/09

I.M.

02/02/2012

02/05/2012

DH-DD(2012)945F

GERMANY / ALLEMAGNE

5631/05

ALTHOF AND OTHERS

08/12/2011

08/03/2012

DH-DD(2012)1094E

4646/08

O.H.

24/11/2011

24/02/2012

DH-DD(2012)1093E

21906/09

KRONFELDNER

19/01/2012

19/04/2012

DH-DD(2012)1095E

REPUBLIC OF MOLDOVA / REPUBLIQUE DE MOLDOVA

41588/05

AVRAM AND OTHERS

05/07/2011

05/10/2011

DH-DD(2012)883E

8999/07

DAN

05/07/2011

05/10/2011

DH-DD(2012)881E

MONTENEGRO

26945/06

BOUCKE

21/02/2012

21/05/2012

DH-DD(2012)1096E

UKRAINE

39229/03

FYODOROV AND FYODOROVA

07/07/2011

07/10/2011

DH-DD(2012)875E

12793/03

BALITSKIY

03/11/2011

03/02/2012

DH-DD(2012)1023E

* * *

F. Adoption of final resolutions – list of cases

The present document contains the revised list of cases proposed for closure at the date of publication.

Decisions

The Deputies adopted the final resolutions set out in document CM/Del/Dec(2012)1157 Volume of Resolutions, in respect of the judgments listed below:

Application / Requête

Case / Affaire

Judgment or decision of / Arrêt ou decision du

Final on / Définitif le

BELGIUM / BELGIQUE

22945/07

HOUTMAN AND MEEUS

17/03/2009

17/06/2009

11892/08

FANIEL

01/03/2011

01/06/2011

BULGARIA / BULGARIE

48191/99

KUSHOGLU

10/05/2007

03/07/2008

10/08/200701/12/2008

66455/01

BULINWAR OOD AND HRUSANOV

12/04/2007

12/07/2007

36794/03

SVETOSLAV HRISTOV

13/01/2011

13/04/2011

61360/00

POPOV NEDELCHO

22/11/2007

22/02/2008

21558/03

MINCHEVA

02/09/2010

02/12/2010

67719/01

MIHALKOV

10/04/2008

10/07/2008

52435/99

IVANOVA

12/04/2007

12/07/2007

50/02

IGNATOV

02/07/2009

02/10/2009

34383/03

GOCHEV

26/11/2009

26/02/2010

30943/04

NALBANTSKI

10/02/2011

10/05/2011

31814/03

HOVANESIAN

21/12/2010

21/03/2011

56891/00

BORISOVA

21/12/2006

21/03/2007

15239/02

VELTED-98 AD

11/12/2008

11/03/2009

30122/03

SIMEONOV

28/01/2010

28/04/2010

17868/07

MIHAYLOV KOSTADIN

27/03/2008

27/06/2008

71127/01

BEVACQUA AND S.

12/06/2008

12/09/2008

11578/04

ANDREEV

10/02/2011

10/05/2011

44009/02

IVANOV EVGENI

22/05/2008

22/08/2008

3475/03

TITOVI

25/06/2009

25/09/2009

22774/03

ÖZVER

22/10/2009

22/01/2010

26483/04

SHIPKOV

24/02/2011

 

35825/97

AL AKIDI

31/07/2003

31/10/2003

56762/00

DIMOV

08/03/2007

08/06/2007

43231/98

E.M.K.

18/01/2005

18/04/2005

35436/97

HRISTOV

31/07/2003

31/10/2003

48870/99

ILIEV

22/12/2004

22/03/2005

47279/99

YOSIFOV

07/12/2006

07/03/2007

45114/98

BOJILOV

22/12/2004

22/03/2005

47799/99

BOJINOV

28/10/2004

28/01/2005

42026/98

ASENOV

15/07/2005

15/10/2005

60859/00

HRISTOVA

07/12/2006

07/03/2007

16085/02

GEORGIEVA

03/07/2008

03/10/2008

40063/98

MITEV

22/12/2004

22/03/2005

48137/99

POPOV

01/12/2005

01/03/2006

56308/00

TOSHEV

10/08/2006

10/11/2006

59913/00

VASILEV

02/02/2006

02/05/2006

40896/98

NIKOLOVA No. 2

30/09/2004

30/12/2004

56796/00

DANOV

26/10/2006

26/01/2007

50358/99

PEKOV

30/03/2006

30/06/2006

20024/04

ZDRAVKO PETROV

23/06/2011

23/09/2011

77185/01

BOYCHEV AND OTHERS

27/01/2011

27/04/2011

CZECH REPUBLIC / REPUBLIQUE TCHEQUE

44438/06

BREUKHOVEN

21/07/2011

21/10/2011

FINLAND / FINLANDE

40350/05

KAURA

23/06/2009

23/09/2009

34165/05

R.H.

02/06/2009

02/09/2009

FRANCE

22584/06

BACCICHETTI

18/02/2010

18/05/2010

1946/06

BOWLER INTERNATIONAL UNIT

23/07/2009

23/10/2009

34658/07

CHATELLIER

31/03/2011

30/06/2011

22349/06

MANCEL AND BRANQUART

24/06/2010

22/11/2010

29938/07

POIROT

15/12/2011

15/03/2012

35079/06

PATOUX

14/04/2011

14/07/2011

35935/03

BAUDOIN

18/11/2010

18/02/2011

35787/03

WALCHLI

26/07/2007

26/10/2007

28198/09

MOR

15/12/2011

15/03/2012

30183/06

VERNES

20/01/2011

20/04/2011

GREECE / GRECE

11919/03

MOHD

27/04/2006

27/07/2006

199/05

JOHN

10/05/2007

10/08/2007

42837/06+

DIMITRAS AND OTHERS

03/06/2010

03/09/2010

34207/08+

DIMITRAS AND OTHERS No. 2

03/11/2011

03/02/2012

46355/99

TSIRIKAKIS

17/01/200223/01/2003

10/07/200209/07/2003

48392/99

HATZITAKIS

11/04/2002

11/07/2002

51354/99

KARAGIANNIS AND OTHERS

16/01/2003

16/04/2003

HUNGARY / HONGRIE

29086/09

BALINT

20/03/2012

 

59718/09

BARASITS

03/04/2012

 

30288/06

BERENYI

20/03/2012

 

18428/09

BERES-DEAK

13/12/2011

 

48345/09

BODNAR

20/03/2012

 

48103/07

DIANOVSZKI

18/10/2011

 

334/09

EOSOLY

13/12/2011

 

14551/09

FODOR

20/03/2012

 

58978/08

FODOR

13/12/2011

 

24590/09

GAJDOS

03/04/2012

 

11834/09

GALLAI

13/12/2011

 

37370/09

GAZDA

03/04/2012

 

57095/08

GERGELY AND OTHERS

13/12/2011

 

55734/08

GYONGYOSSYNE KISS

13/12/2011

 

62999/09

GYURA

17/04/2012

 

38188/09

HAVRILLA

03/04/2012

 

14947/10

HORVATH AND MARGITTAI

17/04/2012

 

50375/08

JOZSEF KOVACS

15/11/2011

 

17687/09

KODREAN

20/03/2012

 

46785/07

KOMÉTA 99 ZRT

09/11/2010

 

49620/09

KOROM

20/03/2012

 

13847/09

LASZLO KISS

13/12/2011

 

27814/09

LEGENDI

03/04/2012

 

13670/09

LENDVAY

13/12/2011

 

1771/09

LIBERIA PLUSZ Kft

13/12/2011

 

619/09

LOVASZ

13/12/2011

 

44350/07

MAZLONE WALTER

20/03/2012

 

58174/09

MESZAROS

13/12/2011

 

31353/09

PEKARINE KOZMA AND OTHERS

20/03/2012

 

56071/09

PURCSEL

20/03/2012

 

3713/08

R.E. Bt

13/12/2011

 

46769/08

RIH Kft

13/12/2011

 

46771/08

ROZGONYI

13/12/2011

 

2810/09

ROZSA AND HABONY

13/12/2011

 

46987/08

RUSZ

15/11/2011

 

9837/10

SZABOLCS NEMETH

15/11/2011

 

18548/09

SCHESZTAK

13/12/2011

 

29137/09

SULI

20/03/2012

 

37245/08

SARKA AND OTHERS

13/12/2011

 

57193/09

SZEBELLEDI

03/04/2012

 

54216/08

TANBERGER

13/12/2011

 

600/09

TOMA

13/12/2011

 

44378/05

DARÓCZY

01/07/2008

01/10/2008

19547/07

DARVAS

11/01/2011

11/04/2011

44399/05

WELLER

31/03/2009

30/06/2009

56282/09

BLOCK

25/01/2011

25/04/2011

37374/05

TÁRSASÁG A SZABADSÁGJOGOKÉRT

14/04/2009

14/07/2009

11849/07

KÁROLY HEGEDŰS

03/11/2011

03/02/2012

ITALY / ITALIE

28169/06

DI CECCO

15/02/2011

15/05/2011

2555/03

GUADAGNINO10

18/01/2011

20/06/2011

LUXEMBOURG

43490/08

WAGNER

06/10/2011

06/01/2012

24720/03

ALLIANCE CAPITAL (LUXEMBOURG) S.A.

18/01/2007

18/04/2007

POLAND / POLOGNE

23614/08

HENRYK URBAN AND RYSZARD URBAN

30/11/2010

28/02/2011

25924/06

NOWIŃSKI

20/10/2009

20/01/2010

27225/05

GAJEWSKI

21/12/2010

21/03/2011

53025/99

FRANKOWICZ

16/12/2008

04/05/2009

PORTUGAL

7041/10

FRANCISCO MANUEL FERREIRA DOMINGUES SIMOES

10/05/2011

Decision / décision

24773/10

SANDRA MARIA FIGUEIREDO MARTINS AMORIM

21/06/2011

Decision / décision

28595/10+

QUINTO DO VALLADO – SOCIEDADE AGRICOLA, LDA

10/05/2011

Decision / décision

ROMANIA / ROUMANIE

24965/04

BULAI

12/04/2011

Decision / décision

25270/03

COCAN

16/06/2011

Decision / décision

16756/06

CORLACI

22/02/2011

Decision / décision

7339/08

COSTICA RAD

12/04/2011

Decision / décision

49332/06

DANESCU

18/01/2011

Decision / décision

22959/05

ION

11/10/2011

Decision / décision

11950/06

MEDESAN

18/10/2011

Decision / décision

31665/06

NEGRUTIN AND OTHERS

11/10/2011

Decision / décision

5431/03

PINTILIE

06/09/2011

Decision / décision

17134/04

POPESCU VERONICA

13/01/2011

Decision / décision

45469/07

RADU

12/04/2011

Decision / décision

28319/03

ŞTEFAN

06/04/2010

06/07/2010

20448/02

BEGU

15/03/2011

15/06/2011

35097/02

BOZGAN

11/10/2007

11/01/2008

23391/05

LINCAR

21/02/2012

Decision / décision

13182/03

NEMES

10/01/2012

Decision / décision

38431/05

SALAMON

10/01/2012

Decision / décision

29294/02

HIRSCHHORN

26/07/2007

26/10/2007

1434/02+

LUPAŞ AND OTHERS

14/12/2006

14/03/2007

78060/01

PETRINA

14/10/2008

06/04/2009

21175/03

CONSTANTIN ADRIAN

12/04/2011

12/07/2011

25339/03

AVRAM

18/10/2011

18/01/2012

33627/96

BĂRĂGAN

01/10/2002

05/02/2003

33912/96

BUDESCU AND PETRESCU

02/07/2002

02/10/2002

32943/96

FĂLCOIANU AND OTHERS

09/07/2002

09/10/2002

4630/03

GACIU

30/09/2008

30/12/2008

38608/97

IONESCU

02/11/2004

10/11/2005

02/02/2005

10/02/2006

27949/04+

LECA AND FILIPESCU

19/07/2011

 

6248/03

POPEA

05/10/2006

05/01/2007

18780/04+

S.C. AECTRA AGROCHEMICALS S.A. AND MUNTEANU

27/03/2012

 

36942/03

TRIPON No. 1

23/09/2008

23/12/2008

29419/02

SC MAROLUX SRL AND JACOBS

21/02/2008

01/12/2008

48269/08

POSTOLACHE No. 2

06/07/2010

22/11/2010

36820/02

DUMITRESCU VALENTIN

01/04/2008

01/07/2008

33118/05

GELERI

15/02/2011

15/09/2011

26985/03

BURGHELEA

27/01/2009

27/04/2009

19750/03

AGVPS-BACAU

09/11/2010

09/02/2011

38692/05+

FORUM MARITIME S.A.

04/10/2007

04/01/2008

23468/02

SISSANIS

25/01/2007

25/04/2007

70786/01

ROSENGREN

24/04/2008

24/07/2008

SLOVAK REPUBLIC / REPUBLIQUE SLOVAQUE

51493/07

ZAKOVA MALINOVA

08/11/2011

Decision / décision

7261/06

STAVEBNÁ SPOLOČNOSŤ TATRY POPRAD S.R.O.

03/05/2011

03/08/2011

SWEDEN / SUEDE

62332/00

SEGERSTED-WIBERG AND OTHERS

06/06/2006

06/09/2006

TURKEY / TURQUIE

30326/03

ERKUŞ

29/09/2009

29/12/2009

4889/05+

KARATAŞ AND YILDIZ AND OTHERS

16/07/2009

16/10/2009

11449/02

TAVLI

09/11/2006

09/02/2007

33446/02

MERAL

27/11/2007

02/06/2008

19728/02

AKGÜL

17/7/2008

17/10/2008

9907/02

ARAÇ

23/09/2008

23/12/2008

2841/05+

EKMEKÇI AND OTHERS

26/05/2009

26/08/2009

10971/05

ERCİYAS

27/09/2011

27/12/2011

38012/03

HASIRCI

24/03/2009

06/07/2009

41296/04

KARADUMAN AND TANDOĞAN

03/06/2008

17/09/2008

27080/08+

KÖKSAL AND DURDU

15/06/2010

15/09/2010

6162/04

POSLU AND OTHERS

08/06/2010

08/09/2010

57711/08+

TUKSAL AND OTHERS

21/09/2010

21/12/2010

37829/05

YILMAZ MELEK SIMA

30/09/2008

06/04/2009

UNITED KINGDOM / ROYAUME-UNI

46850/10

SUBNER

29/11/2011

Decision / décision

8000/08

A.A.

20/09/2011

20/12/2011

26766/05+

AL-KHAWAJA AND TAHERY

15/12/2011

Grand Chamber

52999/08

HANIF AND KHAN

20/12/2011

20/03/2012

37060/06

J. M.

28/09/2010

28/12/2010

7350/06

MINSHALL

20/12/2011

20/03/2012

APPENDICES

Appendix 1: List of all the cases for which an action plan / action report has been has been presented to the Committee 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 see Opinion 234(2002) of the Parliamentary Assembly of the Council of Europe of 22 January 2002, § 15 (iv)(b); see also § 21 of the present judgment.

* All reference to Kosovo, whether the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.

4

5

All reference to Kosovo, whether the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.

6

In this context, it is noted that Article 6 does not exclude the use at trial of illegally obtained evidence, save as regards that obtained by torture. The use at trial of such evidence will generally not violate the fairness requirements if proper procedural safeguards are in place and if the reliability of such evidence is not tainted by e.g. oppression, coercion or entrapment (see notably Schenk against Switzerland, No. 10862/84, judgment of 12 July 1988, §46; and Khan against the United Kingdom, No. 35394/97, judgment of 12 May 2000, §34).

7

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.”

8

For each of the cases listed here, the relevant indicator, as set out in footnote above, is indicated.

9

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).

10

Case against Italy and France but the European Court declared the complaint against France inadmissible / Affaire contre l’Italie et la France mais la Cour européenne a déclaré irrecevable le grief contre la France.



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