Ministers’ Deputies

Annotated order of Business and decisions adopted

CM/Del/Dec(2013)1164 11 March 2013



1164th Meeting (DH), 5-7 March 2013



CONTENTS

A. General items 5

B. Examination of cases – Proposals from the Chair 6

C. Classification of cases 113

D. Supervision of payment of the just satisfaction 114

E. Action plans 114

F. Adoption of final resolutions – Preliminary list 115

APPENDICES 120

LIST OF PARTICIPANTS

The 1164th meeting of the Ministers’ Deputies opened on 5 March 2013 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 R. Hoxha

Ms L. Mandija

ANDORRA

Ms F. Aleix Lartigue

ARMENIA

Mr A. Papikyan, Chairman

Mr S. Kartashyan

AUSTRIA

Mr T. Hajnoczi

Mr S. Rutkowski

AZERBAIJAN

Mr J. Mirzayev

BELGIUM

Ms M. Janssens

BOSNIA AND HERZEGOVINA

Mr A. Săhović

Ms L. Ljubic-Lepine

Ms B. Skalonjic

BULGARIA

Mr A. Tehov

Mr A. Ananiev

CROATIA

Ms A. Djamić

Mr I. Mintas

CYPRUS

Ms T. Constantinidou

Mr S. Hatziyiannis

Mr T. Pittakis

Ms S. Joannides

Mr G. Ioannides

CZECH REPUBLIC

Mr M. Bouček

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

Mr G. Lortki Panidze

Mr L. Meskhoradze

GERMANY

Mr J. Holzenberger

GREECE

Mr I. Asteriadis

Ms M. Solomou

Mr T. Zafeirakos

Ms O. Patsopoulou

HUNGARY

Ms A. Tóth-Ferenci

ICELAND

-

IRELAND

Mr P. Gunning

Mr R. Scannell

Ms R. Hynes

ITALY

Mr M. Jacoangeli

Ms P. Accardo

LATVIA

Mr M. Klīve

LIECHTENSTEIN

Mr D. Ospelt

LITHUANIA

Ms U. Matulevičiené

LUXEMBOURG

Ms A. Kayser-Attuil

MALTA

Mr A. Ghigo

REPUBLIC OF MOLDOVA

Ms L. Ilieş

MONACO

-

MONTENEGRO

-

NETHERLANDS

Mr J. Rademaker

NORWAY

Mr P. Wille

Mr J. Høvik

POLAND

Ms E. Suchożebrska

Ms A. Dąbrowiecka

Ms M. Borowska

Ms U. Szafrańska

PORTUGAL

Mr L.F. Castro Mendes

Mr P. Neves Pocinho

Mr L. Sequeira

Mr M. H. Simão Pires

ROMANIA

Mr D. Dumitrache

Ms I. Cambrea

RUSSIAN FEDERATION

Mr A. Alekseev

Mr I. Podolskiy

Ms N. Zyabkina

Mr N. Mikhaylov

Mr G. Matyushkin

Ms Y. Tsimbalova

Ms A. Dzutseva

Ms K. Panteleeva

SAN MARINO

Ms B. Para

SERBIA

Ms J. Backovic

Ms K. Potic

Mr Z. Milosevic

Mr D. Kadic

SLOVAK REPUBLIC

Mr D. Štefánek

Mr M. Babicz

Ms K. Čahojová

SLOVENIA

Mr D. Bergant

Ms B. Sušnik

Mr L. Bembič

Mr Z. Zinrajh

Ms N. Gregori

Ms N. Ban Zlatev

Ms I. Jeglič

SPAIN

Mr F. Alvargonzález

Mr L. Tarin Martin

SWEDEN

Mr C.-H. Ehrenkrona

Ms S. Finnigan

Ms H. Lindquist

SWITZERLAND

Mr B. Gubler

“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

Ms E. Demircan

Mr Y. Yeşilada

Mr G. Seker

Ms F.B. Okur

Ms A. Emüler

Ms S. Karabacak

Ms G. Plümer Küçük

Mr S. Dalyan

Mr H. Ali Acıkgul

Mr Y. Arslan

UKRAINE

Mr M. Tochytskyi

Ms O. Pasheniuk

Mr N. Kulchytskyy

Ms Z. Lukianenko

Ms D. Pistriak

Ms M. Sokorenko

UNITED KINGDOM

Ms K. Jones

Mr S. Kelly

*

* *

EUROPEAN UNION

Mr G.C. Bruno

*

* *

A. General items

Item a.

Agenda and approbation of the Order of Business

Decision

The Deputies approved the order of business.

* * *

Item b.

Preparation of the next Human Rights meeting – 1172nd meeting (June 2013)

Decision

The Deputies took note of the fact that an indicative list of cases to be included in the draft order of business of the 1172nd meeting, together with the time-table for the preparation of that meeting, will be issued on 28 March 2013.

* * *

Item c.

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

Draft annual report 2012

DH-DD(2012)1110, DH-DD(2013)100Erev2

Decision

The Deputies adopted the Annual Report for 2012 as it appears in the draft (document DH-DD(2013)100Erev2), and supplemented by the foreword by the Chairs of the Human Rights meetings as well as the remarks by the Director General of Human Rights and Rule of Law1, it being understood that:

    - delegations have until 11 March 2013 to submit observations with respect to statistics and proposals for last, minor editorial changes;

    - the final text of the report will be deemed to be adopted on 12 March 2013 and that

    - the report will be made available to the public after the presentation of its printed version to the Committee of Ministers at the opening of the 1168th meeting (10 April 2013).

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

12

DRIZA GROUP

MANUSHAQE PUTO AND OTHERS

ALBANIA

02/06/2008

17/12/2012

These cases concern the 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 (violation of articles 6§1, 1, Protocol No.1 and 13). The European Court in the pilot judgement Manushaqe Puto and others fixed a deadline of 18 months for the authorities to set up an effective compensation mechanism.

Follow-up to the decision adopted at the 1157th meeting, asking the authorities to make rapidly concrete progress and in particular:

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

- finalise the land value map,

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

1157th meeting

December 2012

2

15

CAKA GROUP

ALBANIA

08/03/2010

Unfairness of criminal proceedings against the applicants (violations of Article 6§1 et 6§3(d).

Follow-up to the decision adopted at the 1150th meeting, in particular of the requests for the reopening of the impugned national proceedings and the reasons why some of the applicants who have obtained a reopening - are still detained.

1150th meeting

September 2012

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

3

18

DYBEKU

GRORI

ALBANIA

02/06/2008

07/10/2009

These cases concern the ill-treatment suffered by the applicants as a result of a lack of adequate medical treatment whilst in detention (violation of Article 3).

The case of Grori also concerns the unlawfulness of the applicant’s detention from 15/05/2002 until 29/12/2003 which was founded on international law instruments not yet in force in respect of Albania (violation of Article 5§1) and the unjustified delay in complying with the European Court's interim measure to transfer the applicant to a civilian hospital (violation of Article 34).

Action plan submitted in November 2011. Delay in the submission of the necessary additional information to allow examination of the status of execution of the cases by the Committee.

1092nd meeting

September 2010, p. 3, 4

4

20

M.S.

BELGIUM

30/04/2012

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

Follow-up to the decision adopted at the 1157th meeting, in particular concerning the research by the Belgian authorities on whether the applicant faces a risk of inhuman or degrading treatment in Iraq with a view to assessing, as appropriate, the advisability of further measures.

1157th meeting

December 2012

5

22

M.S.S.

BELGIUM AND GREECE

21/01/2011

Expulsion of an asylum seeker from Belgium to Greece.

Assessment of the outstanding issues identified in memoranda (2012)19 and (2012)26 following the decisions adopted at the 1144th meeting (regarding Greece) and 1150th meeting (regarding Belgium).

1150th meeting

September 2012

6

27

SEJDIC AND FINCI

BOSNIA AND HERZEGOVINA

22/12/2009

Violation of right to free elections and discrimination against minorities.

Follow-up to Interim Resolution CM/ResDH(2012)233 adopted at the 1157th meeting.

1157th meeting

December 2012

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

7

29

VELIKOVA GROUP

BULGARIA

04/10/2000

Death or ill-treatment which had occurred under the responsibility of law enforcement agents and lack of effective investigation.

Assessment of the general measures taken and identification of the outstanding questions.

1115th meeting

June 2011

8

32

ASSOCIATION FOR EUROPEAN INTEGRATION AND HUMAN RIGHTS AND EKIMDZHIEV GROUP

BULGARIA

30/01/2008

Lack of sufficient guarantees against the risk of abuse in the operation of the secret surveillance system in Bulgaria.

Assessment of the legislative measures taken and of the information provided by the Bulgarian authorities and identification of the questions which remain open.

1043rd meeting

December 2008) (p.42)

9

35

GEBREMEDHIN (GABERAMADHIEN)

FRANCE

26/07/2007

Lack of a remedy with automatic suspensive effect against a decision of 2005 refusing the applicant (requesting asylum at the boarder) the authorization to enter the French territory (violation of Article 13 combined with Article 3).

Assessment of the authorities’ proposal to close the supervision of this case, in the light of their action report, the submissions made by several NGO’s and national institutions for human rights, as well as a memorandum prepared by the Secretariat.

(Case currently classified under the standard procedure)

1051st meeting

March 2009 (p. 40)

10

37

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.

Assessment of the action plan presented to the Committee on 3/12/2012 and its update following the decision adopted at the 1157th meeting

1157th meeting

December 2012

11

40

MICHELIOUDAKIS + DIAMANTIDES No. 2 GROUP

GREECE

03/07/2012

19/08/2005

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

Stress the importance to promptly take the necessary measures in order to introduce, before the expiry of the time limit set by the Court (03/07/2013), an effective remedy and instruct the Secretariat to prepare an assessment of the actions plan presented by the authorities.

1150th meeting

September 2012

12

42

GLYKANTZI

KONTI-ARVANITI GROUP

GREECE

30/01/2013

10/07/2003

Excessive length of civil proceedings and lack of an effective remedy (pilot judgment) (deadline expires on 30/01/2014).

First examination of the case. Stress the importance of timely compliance with the pilot judgment.

- New judgment

- 1136th meeting (March 2012)

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

13

44

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 (an updated Action plan expected on 8 February 2013).

1157th meeting

December 2012

14

46

HIRSI JAMAA AND OTHERS

ITALY

23/02/2012

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

Assessment of progress made in the status of execution, notably regarding the individual measures.

1157th meeting

December 2012

15

48

SNEERSONE AND KAMPANELLA

ITALY

12/10/2011

Order for return of minor child, who had been living with mother in Latvia, to father in Italy without due consideration of child’s best interests.

Assessment of the information provided by the Italian authorities on the progress in the implementation of the individual measures.

First examination

16

50

M.D. AND OTHERS

MALTA

17/10/2012

Permanent and automatic forfeiture of a mother’s parental rights following her conviction for cruelty to her children (violation of Article 8) and lack of access to court to challenge a final care order over the children (violation of Article 6§1).

Action plan received on 13.02.13 including information on the urgent individual measures needed to provide the applicant the possibility to challenge the permanent forfeiture of her parental rights.

New judgment

17

52

ORCHOWSKI GROUP

POLAND

22/01/2010

Inhuman or degrading conditions of detention (overcrowding).

Evaluation of developments since the preliminary assessment by the Committee of the Action report submitted in this group of cases.

1120th meeting

September 2011

18

55

KAPRYKOWSKI GROUP

POLAND

03/05/2009

Inhuman or degrading conditions of detention (lack of adequate medical care).

Evaluation of developments since the preliminary assessment by the Committee of the Action plan submitted in this group of cases.

1120th meeting

September 2011

19

58

OLIVEIRA MODESTO GROUP

PORTUGAL

08/09/2000

Excessive length of judicial proceedings

Assessment of the measures taken to remedy the structural deficiencies revealed by this group of cases (see also Interim Resolution CM/ResDH(2010)34).

1078th meeting

March 2010, p. 105

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

20

61

STRĂIN AND OTHERS GROUP

MARIA ATANASIU

ROMANIA

30/11/2005

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

Assessment of the situation given the lack of information from the authorities since the last examination by the Committee of Ministers.

1157th meeting

December 2012

21

63

ANGHELESCU BARBU No. 1 GROUP

ROMANIA

05/01/2005

Death or ill-treatment occurred under the responsibility of law enforcement agents; ineffective investigations and domestic remedies.

Assessment of the status of the execution and of the need for additional general measures, in the light of the information provided in the action plan submitted by the authorities on 9/01/2013 (DH-DD(2013)35E).

1115th meeting

June 2011

22

67

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.

Follow-up to the decision adopted at the 1157th meeting: the Russian authorities were invited to adopt protective measures in respect of persons in similar situations. Since then a new incident has been reported by the Court

1157th meeting

December 2012

23

71

ALEKSEYEV

RUSSIAN FEDERATION

11/04/2011

Repeated bans on gay marches (violation of Article 11; violation of Article 13 in conjunction with Article 11; violation of Article 14 in conjunction with Article 11).

Follow-up to the decision adopted at the 1150th meeting: assessment of the situation, notably in the light of information provided by the Russian authorities on 25/01/2013 (DH-DD(2013)67) in response to the Committee’s invitation to present a global action plan for the execution of this case.

1150th meeting

September 2012

24

74

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).

Additional clarifications are awaited on the current conditions of detention of Mr. Ananyev

1157th meeting

December 2012

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

25

77

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.

Follow-up to the decision adopted at the 1157th meeting: evaluation of the situation as regards individual measures

1157th meeting

December 2012

26

80

LIU 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).

Follow-up to the decision adopted at the 1157th meeting

1157th meeting

December 2012

27

83

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 (the new deadline set by the Court for taking the necessary measures will expire on 24/09/2013).

1157th meeting

December 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

28

85

KURIĆ AND OTHERS

SLOVENIA

26/06/2012

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

Given the deadline set by the Court to introduce a compensation scheme (26 June 2013), to decide when to resume consideration of this case with a view to evaluating the action plan submitted tardily by the authorities.

1150th meeting

September 2012

29

88

92

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 the 1157th 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.

1157th meeting

December 2012

30

93

HULKI GUNES GROUP

TURKEY

19/09/2003

Unfairness of criminal procedures.

To stress the importance of the adoption of the draft law allowing the reopening of proceedings in the applicants’ cases without further delay.

1157th meeting

December 2012

31

95

ORMANCI GROUP

ÜMMÜHAN KAPLAN

TURKEY

21/03/2005

20/06/2012

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

Taking stock of the measures presented by the Turkish authorities in their Action Plan.

1150th meeting

September 2012

32

98

YURY NIKOLAEVICH IVANOV

ZHOVNER GROUP

UKRAINE

15/01/2010

29/09/2004

Non-enforcement of domestic court decisions (Art. 6§1 + 1 P1), pilot judgment, deadline expired in July 2011

Updated assessment of the measures taken so far and of the measures still envisaged in the light of the most recent information submitted by the Ukrainian authorities

1157th meeting

December 2012

33

101

KHARCHENKO GROUP

UKRAINE

10/05/2011

Unlawful and/or arbitrary and/or excessively long detention on remand (Article 5).

Stock-taking of the measures reported so far and need to highlight importance of providing further clarifications as well as information on a number of outstanding issues.

1144th meeting

June 2012

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

34

104

LUTSENKO

UKRAINE

19/11/2012

Restriction of liberty also for other reasons than those permissible under the Convention (Article 18 in conjunction with Article 5).

First examination by the Committee of the case which raises complex problems in view of the violation found under Article 18.

New judgment

35

106

NAUMENKO SVETLANA GROUP

MERIT GROUP

UKRAINE

30/03/2005

Excessive length of judicial proceedings and lack of effective remedy (Article 6§1 + 13).

Request clarifications concerning the measures reported so far and need to highlight the urgency of introducing effective domestic remedies.

1136th meeting

March 2012

ALBANIA

Application: 33771/02

Judgment final on: 02/06/2008

DRIZA GROUP v. Albania

MANUSHAQE PUTO AND OTHERS v. Albania

Enhanced procedure: complex problem/ pilot judgement

Reference texts:

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

Action Plan (general measures for the Driza group) (06/05/2011) DH-DD(2011)316

Action Plan (individual measures, Driza case) (23/08/2011) DH-DD(2011)663E

Action Plan (individual measures, Gjonbocari case) (23/08/2011) DH-DD(2011)662E, (05/11/2012)

DH-DD(2012)1031E

Action Plan (individual measures, case of Vrioni and others) (23/08/2011) DH-DD(2011)661E

Action Plan (individual measures, Çaush Driza case) (05/11/2012) DH-DD(2012)1004revE

Action Plan (Çaush Driza case) (25/02/2013) DH-DD(2013)232E

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

Communication from Albania (02/08/2012) DH-DD(2012)729 + appendix 1 and appendix 2

Communication from Albania (07/09/2012) DH-DD(2012)785

Communication from Albania (19/11/2012) DH-DD(2012)1091E

Letter from the Registry of the European Court (case of Manushaqe Puto and others) (11/01/2013)

DH-DD(2013)29E

Decision adopted at the 1150th meeting (September 2012)

Decision adopted at the 1157th meeting (December 2012)

Case description: These cases concern the 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) and the lack of an effective remedy in this respect (violations of Article 13). In view of the scale of the problem, the European Court delivered a pilot judgement in the Manushaqe Puto and others case (final on 17/12/2012) in which it requests the setting-up of an effective compensation mechanism within 18 months.

Other violations were found in this group of cases : bailiffs' failure to secure enforcement of a Supreme Court decision, which recognised the applicants' property claim and ordered the occupiers to cease occupation of the untitled land (violation of Article 6§1, and of Article 1 of Protocol No. 1 in the case of Bushati); lack of legal certainty and lack of impartiality of the Supreme Court (violations of Article 6§1, in the case of Driza); excessive length of civil proceedings and lack of an effective remedy in this respect (violations of Articles 6§1 and 13, case of Gjonbocari and others).

Status of execution:

Individual measures: No information concerning the individual measures has been submitted to the Committee since the 1157th meeting. Several questions still remain open to date, 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 the measures taken with a view to accelerating the civil procedings which the Court held to be excessively long and which are still pending;

- 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;

- in the cases Manushaqe Puto, Dani, Ahmatas and others and Muka the Court awarded a sum in respect to pecuniary and non-pecuniary damages.

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: In view of the persistent ineffectiveness of the current compensation mechanism and of the urgent need to grant the applicants an appropriate and rapid compensation at national level, the European Court considered it necessary to apply the pilot judgement procedure in the Manushaqe Puto and others case (final on 17/12/2012) and imposed on the authorities a 18 months deadline to set up an effective compensation mechanism; the deadline expires on 17 June 2014. This pilot judgement endorses the decisions adopted by the Committee since its 1144th meeting (June 2012) indicating to the authorities a number of general measures to be adopted urgently, i.e.:

- 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.

In response the Albanian authorities informed the Committee of the measures adopted in this respect, within the framework of a global strategy relating to property rights for the 2012 to 2020 period (see DH-DD(2011)316 and DH-DD(2012)729), notably:

    - the adoption of a legal framework fixing the criteria on which the new land value map will be based;

    - the compilation of a list of 639 final judicial decisions delivered between 1995 and 2011 and a provisional list of administrative decisions.

At the last examination of this group of cases (see decision adopted at the 1157th meeting) the Committee deplored the absence of progress in the adoption of the steps identified as essential in order to guarantee effectively the right to compensation recognised by final decisions and underlined once again the urgent need to take all the necessary general measures required. In addition the Committee invited the authorities to up-date the action plan indicating binding deadlines for each of the steps still pending.

To date, no new information has been provided on the progress achieved since the 1157th meeting.

The general measures required under the case of Gjonboçari to remedy the excessive length of civil proceedings and the lack of an effective remedy are examined in the context of the Marini case (3738/02).

Application

Case

Judgment of

Final on

604/07+

MANUSHAQE PUTO AND OTHERS

31/07/2012

17/12/2012

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 OTHERS2

29/09/200907/12/2010

29/12/2009

11/04/2011

Decisions

The Deputies

1. recalled that the Committee has already reiterated on many occasions its call to the Albanian authorities to rapidly take all the measures identified as necessary for the establishment of an effective compensation mechanism for property nationalised during the communist regime and the execution without further delay of numerous final domestic decisions delivered in this area (see in particular the decision adopted at the 1144th meeting);

2. stressed that the Committee's approach was endorsed in a pilot judgment delivered by the European Court, which fixed a deadline of 17 June 2014 for the authorities to put in place such a mechanism;

3. deplored in this context that the progress in the execution of these judgments remains very limited and that no new information has been submitted to the Committee since the last examination of this group of cases;

4. called upon the authorities to submit to the Committee as soon as possible, an action plan with a specific and binding time-table to ensure compliance with the deadline set by the European Court in its pilot judgment ;

5. strongly urged the authorities to also take the individual measures still outstanding in the cases of Driza, Gjonbocari and Çaush Driza and to inform the Committee of these as soon as possible;

6. decided to resume consideration of this group of cases at their 1172nd meeting (June 2013) (DH), if necessary on the basis of a draft interim resolution.

ALBANIA

Application: 44023/02

Judgment final on: 08/03/2010

CAKA GROUP v. Albania

Enhanced procedure: urgent individual measures

Reference texts:

Revised action plan (Caka, Berhani, Laska and Lika, Shkalla) (24/08/2012) DH-DD(2012)786E

Revised action plan (20/02/2013) DH-DD(2013)195rev2

Communication from Albania (11/07/2012) DH-DD(2012)724E

Communication from Albania (06/08/2012) DH-DD(2012)731E

Decision adopted at the 1150th meeting (September 2012)

Case description: Unfairness of criminal proceedings due, in particular:

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

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

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

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

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

Status of execution:

Individual measures: In its decision adopted in September 2012 (1150th meeting), the Committee, recalling the importance of the presumption of innocence, underlined the fact that pending the outcome of the new proceedings, merely the initial decisions, imposed following proceedings contrary to the Convention, are not sufficient to justify the applicants’ continuous detention. It also underlined the importance of bringing the review proceedings rapidly to an end, inviting the authorities to inform the Committee of any development in the applicants’ individual situations. Since the 1150th meeting, no development has been reported by the authorities in response to the Committee’s requests. Instead, in correspondence addressed to the Secretariat, the legal representatives or relatives of the applicants Caka and Berhani, have complained about their unlawful detention.

The current individual situation of the applicants is as follows:

In February and March 2012, the Supreme Court decided to reopen the proceedings in the cases of Caka, Berhani, and Laska and Lika, annulling the decisions taken in the proceedings which had been found to be in violation of the Convention. These decisions were published and the cases remitted before the trial courts. The request of the applicant Shkalla to reopen the initial proceedings is still pending before the Supreme Court. At this stage, no information is available on whether the applicant Cani has lodged a similar request.

According to the most recent information available: the applicants Caka, Berhani, Shkalla and Cani are detained. The sister of the applicant Berhani informed the Secretariat by an email of 15/01/2013 (transmitted to the authorities) that on 19/11/2012, the Berat Regional Tribunal had ordered that he should be released and placed under judicial supervision during an investigation into voluntary homicide and possession of illegal firearms but that this decision had been contested by the Prosecutor. To date, the authorities have not provided any information in this regard and in particular on whether or not the applicant was released further to the Tribunal’s decision.

According to the information submitted by Mr. Caka’s lawyer by letter on 06/02/2013, the Vlora Court of Appeal (the retrial court) confirmed the earlier decision convicting the applicant to 25 years’ imprisonment. This decision has been appealed to the Supreme Court. The lawyer complained that these new proceedings were unfair insofar as the Vlora Court of Appeal did not secure the appearance of certain witnesses at the applicant’s trial nor did it take into account the testimonies of four witnesses given in the applicant's favour (problems which were at the root of the violations found by the European Court in this case). The lawyer’s communication has been forwarded to the authorities. The applicants Laska and Lika were released on parole, however the authorities had indicated that for the applicant Laska, this measure is temporary and he would have to return to prison.

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

In its decision of September 2012 (cited above), the Committee recalled that further information was also awaited on the adoption of measures to remedy the serious shortcomings revealed by the Court’s judgments.

CAKA GROUP

Application

Case

Judgment of

Final on

44023/02

CAKA

08/12/2009

08/03/2010

847/05

BERHANI

27/05/2010

04/10/2010

11006/06

CANI

06/03/2012

06/06/2012

12315/04

LASKA AND LIKA

20/04/2010

20/07/2010

26866/05

SHKALLA

10/05/2011

10/08/2011

1164th meeting - Notes

The situation is very worrying, in particular with regard to the urgent individual measures required in these cases. As recalled above, the applicant Shkalla is still awaiting the reopening of the criminal procedure found to be unfair by the European Court; the applicant Berhani is still in detention on the basis of decisions which were criticised by the judgments of the European Court, decisions which are no longer sufficient to justify the continued detention of the applicant.

As to the applicant Caka, he is now detained on the basis of a new decision. However, the applicant has brought an action before the Supreme Court alleging that the new criminal proceedings were unfair since they did not remedy the shortcomings found by the European Court in the original proceedings.

Furthermore, additional information on the adoption of general measures as well as on the developments in the legislative process aimed at codifying the reopening of proceedings in the Code of criminal procedure is still awaited.

Decisions

The Deputies

1. noted with interest that the applicants in the cases Laska & Lika and Berhani were released pending the outcome of the reopened proceedings following the judgment of the European Court;

2. also noted that in the case of Caka, following the reopening of the impugned proceedings, the applicant's conviction was upheld; however, noted that this decision has been appealed to the Supreme Court, the applicant alleging that the new proceedings have not remedied the shortcomings identified by the European Court;

3. noted with regret that the Supreme Court rejected the request for reopening of criminal proceedings filed by the applicant Shkalla, requiring him to appeal to the Constitutional Court; deplored that in these circumstances, the applicant remains detained on the basis of the initial decision, in violation of the principle of presumption of innocence;

4. reaffirmed the importance of rapidly completing the review proceedings, addressing so far as possible the shortcomings found by the European Court in the original proceedings; in this context, expressed their concern over the delays and uncertainties surrounding the reopening of proceedings in this group of cases and urged the Albanian authorities to inform them promptly of any changes in the situation of the applicants;

5. also encouraged the Albanian authorities to intensify their efforts to complete the changes proposed to the Code of Criminal Proceedings to codify the procedure for reopening and to keep the Committee informed of all developments in this regard.

ALBANIA

Application: 41153/06, 25336/04

Judgments final on: 02/06/2008, 07/10/2009

DYBEKU v. Albania

GRORI v. Albania

Enhanced procedure: structural problem + complex

Reference texts:

Action plan (09/11/2011) DH-DD(2011)1041

Communication from Albania (03/07/2012) DH-DD(2013)59

Decisions adopted at the 1092nd meeting, p. 3, 4 (September 2010)

Case description: These cases concern the ill-treatment suffered by the applicants due to a lack of appropriate medical treatment in prison whilst they were seriously ill (violations of Article 3). In the case of Dybeku, under Article 46 of the Convention, the European Court indicated that necessary measures should be taken as a matter of urgency in order to secure appropriate conditions of detention and adequate medical treatment, in particular, for prisoners who need special care owing to their state of health.

The case of Grori also concerns the unlawfulness of the applicant’s detention from 15/05/2002 until 29/12/2003 which was based on international law instruments not yet in force in respect of the defendant state (violation of Article 5§1) as well as the unjustified delay in complying with the European Court's interim measure to transfer the applicant to a civilian hospital (violation of Article 34).

Status of execution: The authorities submitted an action plan on 09/11/2011(see DH-DD(2011)1041) and further information on the individual measures in the case of Dybeku on 11/07/2012 (see DH-DD(2013)59). The action plan was discussed during the course of bilateral consultations on 10 and 11 July 2012 in Tirana. During these consultations, the authorities had indicated their intention to submit, soon after, a revised action plan. However, no further information has been submitted since then.

Individual measures: The European Court awarded the applicants just satisfaction for non-pecuniary damage, caused by the lack of access to adequate medical treatment during their detention. In the case of Grori, the just satisfaction awarded also included non-pecuniary damage as a result of the unlawfulness of his detention during the period of 15 May 2002 to 29 December 2003.

Furthermore, the authorities have stated that the applicants are currently placed in appropriate conditions of detention with medical treatment adapted to their state of health. The most recent information, submitted on 19/10/2012 by the Albanian Ombudsman, confirmed the authorities’ evaluation. In respect of the applicant’s situation in future, the individual measures are connected to the general measures.

General measures: According to the 2011 action plan, in response to the Court’s finding of a violation of Article 3 of the Convention, a draft law on the surveillance system in prisons, with the aim of reinforcing the rights of detainees, is currently in the process of being adopted. Nonetheless, no details have been provided regarding either the content and extent of the law or the timetable for its adoption. Furthermore, no information has been provided regarding the violations of Articles 5§1 and 34 of the Convention found by the Court in the Grori case.

Application

Case

Judgment of

Final on

41153/06

DYBEKU

18/12/2007

02/06/2008

25336/04

GRORI

07/07/2009

07/10/2009

1164 meeting - Notes

Concerning the individual measures, the available information on the current access of the applicants Grori and Dybeku to appropriate medical treatment seems to be reassuring. Given the nature of the structural problem identified in the judgments (see general measures), the future position of the applicants is linked to the general measures required to guarantee appropriate medical treatment to the applicants and to all detainees in a similar situation.

Concerning the general measures, it should be underlined that the action plan submitted by the Albanian authorities does not contain any substantive response to the European Court’s findings on the lack of access for detainees to adequate medical treatment:

    - the action plan mentions the fact that a draft law is envisaged concerning the surveillance system in prisons, however without providing clarity either on the content of the legislation or on the provisions relevant to guaranteeing access to treatment for sick detainees;

    - during bilateral contacts with the Secretariat, the authorities had also indicated that the legislative provisions and rules already in force (a law adopted on 10/03/2008 as well as general prison rules, adopted by the Council of Ministers on 25/03/2009) provide a right of access for sick detainees to appropriate medical treatment, at any time during their detention, as well as a right of appeal. However, the authorities’ action plan does not presents these provisions nor does it provide information regarding how these rights are being put into practice.

As a result, detailed information remains outstanding on the current legal framework and practice regarding access to medical treatment for detainees, to enable the Committee to comprehensively assess the status of execution of these judgments.

Moreover, no information has been provided regarding the violations of Articles 5§1 and 34 of the Convention found by the Court in the Grori case.

Decisions

The Deputies

1. noted that, according to the information available, the applicants Grori and Dybeku have currently access to the medical treatment required by their state of health;

2. deplored nevertheless, having regard to the age of the cases and the seriousness of the violations in issue, that the authorities have not yet submitted detailed information to the Committee regarding the measures taken to ensure that the applicants, as well as all other detainees, would in the future be able to access medical treatment necessary for their state of health;

3. recalled in that regard that the action plan submitted in November 2011 had referred to legislative amendments under way with a view to responding to the findings of the European Court related to Article 3 of the Convention but that no additional information has been submitted since then;

4. regretted also that more than three years after the case of Grori became final, no information has been submitted concerning the violations of Articles 5§1 and 34 of the Convention found by the European Court in this case;

5. urged the Albanian authorities to submit to the Committee, without any further delay, an updated action plan containing all the missing information including, in particular, detailed information on the legal regime and practice governing the availability of medical treatment for detainees, so as to enable the Committee to assess the status of execution of these two judgments as soon as possible.

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 (31/10/2012) DH-DD(2012)1080F

Communication from the applicant’s representative (15/05/2012) DH-DD(2012)504F

Communication from the Belgian authorities (23/05/2012) DH-DD(2012)519

Decision adopted at the 1157th meeting (December 2012)

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 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. The Belgian authorities indicated for the 1144th meeting (June 2012), that steps aimed at executing the judgment were under way (DH-DD(2012)519F). The Deputies took note of this information and “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”. In response, the authorities submitted an action plan (DH-DD(2012)1080). In this plan, they indicated that the Court’s judgment does not call Belgium to grant the applicant international protection today. At the 1157th meeting (December 2012), the Committee however noted that the authorities were 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.

General measures: according to the action plan, the Belgian authorities are reflecting on general measures that could be adopted following the findings of violations of Articles 3 and 5§1. The Deputies invited them to provide details on the time-frame in which they foresee concluding this reflection (1157th meeting). As to the violation of Article 5§4, the Belgian authorities identified the source of the shortcoming found here, namely a lack of clarity, for prosecutors, on the applicable rule of territorial competence, and have sent a letter to the Board of Prosecutors General in order to resolve this problem. The Deputies invited the authorities to inform them of the follow-up given to this letter (1157th meeting).

Application

Case

Judgment of

Final on

50012/08

M.S.

31/01/2012

30/04/2012

1164th meeting - Notes

Concerning the individual measures, at this stage the Committee does not have any information on the outcome of the actions taken by the authorities aimed at determining whether the applicant effectively faces a risk of inhuman or degrading treatment in Iraq. It thus appears advisable that the Deputies invite the authorities to provide this information.

Similarly, concerning the general measures, it would appear advisable that the Deputies reiterate their invitation to the Belgian authorities, firstly, to provide details on the time-frame in which they foresee concluding their reflection on general measures that could be adopted following the Court’s findings regarding the risk of inhuman or degrading treatment and unlawful periods of detention and, secondly, to inform them of the follow-up given to the letter to the Board of Prosecutors General with a view to resolving the problem of lack of clarity of the applicable rule of territorial competence, which caused the delay in the examination of the detention’s lawfulness.

Decisions

The Deputies

1. concerning the individual measures, invited the Belgian authorities to inform the Committee of Ministers of the outcome of their actions aimed at determining 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 the general measures, reiterated their invitation to the Belgian authorities, firstly, to provide details on the time-frame in which they foresee to complete their reflection on general measures that could be adopted following the Court’s findings regarding the risk of inhuman or degrading treatment and unlawful periods of detention and, secondly, to inform them of the follow-up given to the letter to the Board of Prosecutors General with a view to resolving the problem of lack of clarity of the applicable rule of territorial competence, which caused the delay in the examination of the detention’s lawfulness.

BELGIUM AND GREECE

Application: 30696/09

Judgment final on: 21/01/2011

M.S.S. v. Belgium and Greece

Enhanced procedure: structural and complex problem

Reference texts:

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

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

Action plan (Belgium) (20/07/2011) DH-DD(2011)566F (restricted)

Revised action plan (Belgium) (20/02/2013) DH-DD(2013)175

Action plan (Greece) (12/07/2011) DH-DD(2011)567F

Communication from Greece (11/01/2013) DH-DD(2013)38F

Communication from Greece (10/01/2013) DH-DD(2013)32E

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

Communication from Greece (26/03/2012) DH-DD(2012)427

Action Plan (Greece) (Rahimi and R.U. cases against Greece) (2802/2012) DH-DD(2012)333F

Communication from Greece (25/01/2012) DH-DD(2012)173E

Communication from Greece (Greek Action Plan on Migration Management) (01/09/2011) DH-DD(2011)670

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

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

Communication on individual measures (Greece) (09/05/2011) DH-DD(2011)348F

Communication from Greece DH-DD(2011)305F

Communication from Greece (23/10/2012) DH-DD(2012)1157E

Communication from Belgium (04/06/2012) DH-DD(2012)553F and appendices in Dutch DH-DD(2012)553 add

Communication from Greece (01/03/2013) DH-DD(2013)231

Communication from Greece (01/03/2013) DH-DD(2013)231F

Communication from NGOs and reply from Greece (04/06/2012) DH-DD(2012)625

Communication from NGOs and reply of the Greece (18/02/13) DH-DD(2013)224E

Communication from a NGO and reply of the Greece (06/03/13) DH-DD(2013)253

Public statement concerning Greece made under Article 10, paragraph 2, of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, CPT/Inf(2011)10, (15/03/2011)

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

Decision adopted at the 1108th meeting (March 2011)

Decision adopted at the 1115th meeting (June 2011)

Decision adopted at the 1120th meeting (September 2011)

Decision adopted at the 1144th meeting (June 2012)

Decision adopted at the 1150th meeting (September 2012)

Case description:

Violations found against Greece:

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

Regarding the conditions of detention, it is recalled that similar issues as those in question in the M.S.S. judgment were raised in other cases (S.D., Tabesh, A.A., Kaja, Efremidge, Lica concerning conditions of detention in different detention facilities; additional issues were raised more recently in the Rahimi, Mahmundi and others and R.U. judgments, the first concerning a foreign unaccompanied minor, the second concerning also a pregnant woman); these are examined within the framework of the M.S.S. case, including violation of Article 13 on account of lack of effective remedy to complain about conditions of detention (R.U., Rahimi, Mahmundi and others judgments). It is recalled that the measures taken with respect to the violations of Article 5 found in those cases are examined separately (group S.D.).

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

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

Violations found against Belgium:

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

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

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

Status of execution: Individual measures: At their 1144th meeting (June 2012), the Deputies noted that as from 9 May 2012 the applicant enjoys in Belgium refugee status and consequently decided to close the examination of the individual measures.

General Measures: On 20 July 2011, the Belgian and the Greek authorities provided their respective action plans. At their 1144th meeting, the Deputies endorsed the assessment presented in the memorandum prepared by the Secretariat (CM/Inf/DH(2012)19) containing a detailed assessment of the two action plans.

Concerning Belgium

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

Concerning the general measures following the violation of Article 13, the Deputies took note (1150th meeting, September 2012) of the positive developments observed in the recent case-law of the Aliens’ Appeals Board (CCE) (presented in document DD(2012)553). They also invited the Belgian authorities to provide the Committee with the action report they had announced, while ensuring that clarifications are provided on the outstanding questions identified in document CM/Inf/DH(2012)26 (endorsed by the Deputies). They decided to resume consideration of this question at the latest at their 1164th meeting (March 2013) (DH), in the light of all this information provided. On 20 February 2013, the Belgian authorities provided a revised action plan (DH-DD(2013)175).

Concerning Greece:

At their 1144th meeting (June 2012) where the case was last examined regarding Greece, the Deputies noted with satisfaction the inauguration of the Initial Reception Service as well as the efforts made towards the establishment of the First Reception Centres aimed at remedying the shortcomings in the field of conditions of detention. They invited the Greek authorities to intensify their efforts with a view to an effective functioning of those centres. The Deputies welcomed the efforts aimed at improving detention conditions in particular in the Evros region and urged the Greek authorities to intensify those efforts and to pay particular attention in that respect to the recommendations made by national and international actors active in the field. Finally the Deputies noted with satisfaction the progress made under the new legislative framework on asylum in particular regarding the inauguration of the Asylum Service, the increased participation of the UNHCR in the procedures and the re-establishment of the appeal committees, as well as the progress made by the latter during the transitional phase, and invited the Greek authorities to intensify their efforts aiming at restoring full access to the asylum procedure.

The Greek authorities provided up-dated information in response to the outstanding issues identified in the summary of the assessment presented in the memorandum CM/Inf/DH(2012)19 in October 2012 and January 2013.

Application

Case

Judgment of

Final on

30696/09

M.S.S.

21/01/2011

Grand Chamber

1164th meeting - Notes

Concerning Belgium

The Belgian authorities sent a revised action plan on 20 February 2013. The authorities are holding consultations with the relevant bodies with a view to replying to the questions that are outstanding concerning the general measures following the violation of Article 13.

Concerning Greece:

As stated above, numerous information was received by the Greek authorities. At the 1164th meeting it is proposed to focus on the issue of the examination of the asylum requests. Indeed, as the Court indicated (§262 of the M.S.S. judgment) and as it was highlighted in the memorandum by the Secretariat (§39 and §51), the effective functioning of the asylum procedure not only responds to the violation of Article 13 in conjunction with Article 3 but is expected to have a positive impact on the situation regarding conditions of detention and living conditions.

As regards the last two issues (conditions of detention and living conditions), it is proposed that the Secretariat prepares an assessment of information received and information to be provided with a view to a future examination by the Committee of Ministers.

    I. Regarding the examination of asylum requests

According to information provided both by Greek authorities and other actors active in this field (EASO’s annual report 2011, UNHCR) the following results have been achieved: the number of examined asylum cases has increased; the quality of asylum decision-making process (in particular at second instance) has improved; backlog cases have decreased; provision of interpretation services was increased; screening, identification and country of origin information systems are being set up.

The authorities further indicate that access to information and to legal aid is more effective. The Aliens Department at Petrou Ralli continues to register claims only on Saturdays, apart from migrants entering from countries with acknowledged problems and vulnerable groups who can file such requests every day. However an average number of 250 asylum applications per week is registered. As for the new Asylum Service, it has still not started functioning on account of budgetary constraints.

The support provided by EASO, FRONTEX and UNHCR in building up the new asylum system is of high importance. In addition, the authorities provided information on the way that forced returns are carried out, as well as on the existence of administrative and judicial safeguards (to challenge the deportation orders), reaffirming that national legislation is in conformity with EU Directives. It is also indicated that the relevant procedure is monitored by the Greek Ombudsman, who collaborates with International Organisations and FRONTEX in this respect.

Assessment: The Greek authorities have taken noteworthy steps and have further announced measures to improve asylum mechanisms. This was also noted by concurring sources (e.g. PACE resolution and the subsequent recommendation adopted on 24/01/2013 following an urgent debate on “migration and asylum: mounting tensions in the Eastern Mediterranean” related to the issues of asylum and detention as raised in the MSS group of cases, Greek Ombudsman, EASO).

Nonetheless as indicated by the authorities, the new Asylum Service has still not started functioning. Therefore, there is a need to accelerate delayed reforms and to resolve practical problems regarding access to asylum procedure, registration of asylum requests as well as introduction of asylum claims (both in and out of detention) offering procedural safeguards.

Furthermore, continuation and enhancement of interpretation services, better access to information material and dealing with backlog of pending cases timely and effectively is needed. As it was highlighted by the above mentioned sources, Greece still lacks a functioning asylum system which will ensure access to a fair and effective procedure. The above-mentioned require the allocation of the necessary financial and human resources, as well as proper training of those involved.

As for forced returns, worries are expressed on a series of massive evictions of undocumented irregular migrants, following a programme operated by the Ministry of Citizen Protection as from March 2012 (Xenios Zeus), as well as on the lack of automatic suspensive effect of appeals introduced before competent administrative bodies (see communication made by ICJ and ECRE under Rule 9.2, DH-DD(2012)625). It is thus urgent that updated information is provided on the following:

    - on the measures taken to address the above shortcomings and to secure a fair and effective asylum procedure;

    - on the functioning of the new Asylum Service and appeals committees (in particular as regards staffing and training provided) and on measures to resolve the problem of restricted access at the Aliens Department at Petrou Ralli;

    - transmission of updated statistical data on the rates regarding asylum requests (granted/rejected; already requested in the context of the memorandum prepared by the Secretariat) as well as of data on the duration of the processing of asylum applications, including at appeal level;

    - on the implementation of the procedure of forced including the measures taken to guarantee that the Xenios Zeus programme is carried out with full respect for the principle of non-refoulement and in particular on how undocumented migrants (potential asylum seekers) who have not yet been able to file an asylum request, due to the shortcomings in the asylum procedure identified above, are treated in the context of this programme.

    II. Regarding conditions of detention and living conditions

    a) Conditions of detention

The information provided by the Greek authorities present achievements or the setting-up of projects including projects financed by the EU (in the border guard stations of Evros and the holding facilities of Attica region (including the Athens Airport and the Petrou Ralli detention centres). However, it emerges from the reports of all actors involved in the field (European Commission, UNCHR, Greek National Commission for Human Rights as well as by the joint NGO communication under Rule 9.2), that despite the efforts made, conditions of detention remain substandard.

Additionally, according to the above-mentioned PACE resolution 1918(2013), (echoing views expressed by many actors), detention of irregular migrants-including unaccompanied minors alongside adults- continues to be used systematically and for prolonged periods of time (up to 18 months according to new legislation). Against this background and with a view to the next examination of this question, up-dated information is needed on the following:

    - the operation of First Reception Centres, as well as the functioning of the Initial (central) Reception Service;

    - measures to address prolonged and systematic detentions of irregular migrants and in particular of unaccompanied minors;

    - well-established case law with respect to the remedy allowing to challenge conditions of detention (it appears that national case law is ambiguous in that respect, for example the court of Komotini granted the objections introduced on detention conditions whilst other national administrative courts rarely take into account detention conditions when examining the legality of detention).

    b) Regarding living conditions

The authorities provided information on different ongoing programmes co-financed by EU in order to grant appropriate reception conditions to asylum seekers. However, concerns have been expressed concerning the lack of available reception places as well as the non-functioning of first reception centres (see communication under Rule 9.2).

Against this background and with a view to the next examination of this question, up-dated information will be needed on the impact of the measures taken and measures envisaged to improve the living conditions of asylum seekers following their release (including unaccompanied minors). The authorities may wish to take into consideration, when providing this information, the concerns expressed by the Parliamentary Assembly in its above resolution (see also the report) regarding the growth of extremism.

The Greek authorities have also provided information on the closed accommodation centre in the Attika region (Amygdaleza). More information on its status as well as on the status and the situation of the persons who stay in this centre and the conditions of their accommodation would be necessary in order to decide whether the measures concerning this centre should be assessed as measures relating to the violation of Article 3 in respect of “the conditions of detention” or in respect of “the living conditions”.

Decisions

The Deputies

Concerning Belgium

1. noted that, according to their revised action plan, the Belgian authorities are holding consultations with the relevant bodies with a view to replying to the outstanding questions identified in memorandum CM/Inf/DH(2012)26, as regards the recent case-law of the Aliens Appeals Board concerning the remedy for a stay of execution under the extremely urgent procedure and invited the authorities to inform the Committee, as soon as possible, about the outcome of these consultations;

Concerning Greece

2. bearing in mind that the effectiveness of the asylum system in Greece is expected to have a positive impact on conditions of detention and living conditions of asylum seekers, decided to focus their present examination on the issues concerning the asylum procedure;

3. noted with interest the efforts made to improve the asylum system, in particular as regards the decrease in the backlog of cases and the improved quality of second instance decisions;

4. urged the Greek authorities to intensify their efforts with a view to accelerating delayed reforms (in particular the functioning of the new Asylum Service) and to resolving practical problems regarding access to the asylum procedure (especially registration of asylum requests at the Aliens Department in Petrou Ralli) and introduction of asylum claims, while in detention;

5. noting with interest the information provided by the Greek authorities in writing and during the meeting, invited the authorities to continue providing updated information and statistical data where appropriate on:

    - the functioning of the new Asylum Service and appeals committees (in particular as regards staffing and training provided),

    - the proportion of asylum requests granted or rejected and the duration of their treatment, including at appeal level,

    - the implementation of the procedure of forced returns including the measures taken to guarantee that the Xenios Zeus programme is carried out with full respect for the principle of non-refoulement;

6. in view of the Committee of Ministers’ next examination of the issues concerning conditions of detention and living conditions of asylum seekers, invited the Greek authorities to provide updated information on the questions identified in memorandum CM/Inf/DH(2012)19 and in the Notes of the present meeting;

7. decided to resume consideration of all the above outstanding issues regarding Belgium and Greece, on the basis of an assessment to be prepared by the Secretariat, at the latest at their 1186th meeting (December 2013) (DH).

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 Resolutions CM/ResDH(2011)291, CM/ResDH(2012)233

Information document CM/Inf/DH(2011)6

Action plan (18/02/2010) DH-DD(2010)108E

Updated Action Plan (26/05/2011) DH-DD(2011)403 and (20/01/2012) DH-DD(2012)64E

Revised Action Plan (19/10/2011) DH-DD(2011)915

Updated Action Plan (04/09/2012) DH-DD(2012)774

Communication from Human Rights Watch (26/05/2010) DH-DD(2010)307E

Communication from Human Rights Watch and reply of the government (16/11/2011) DH-DD(2011)1065

Communication from NGOs (Cardozo Shcool of Law, Human Rights Watch, and Minority Rights Group International on execution of judgement) (05/12/2012) DH-DD(2013)11E

Resolution 1855(2012) of the Parliamentary Assembly

Declaration of the Chairman of the Committee of Ministers (25/04/2012)

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

Decision adopted at the 1137th meeting (14/03/2012)

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

Decision adopted at the 1150th meeting (September 2012)

Decision adopted at the 1157th meeting (December 2012)

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

Status of execution: The Committee of Ministers has repeatedly indicated 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).

In view of the most recent failure of the authorities and political leaders of Bosnia and Herzegovina to amend the Constitution by 30 November 2012, the Committee adopted a second interim resolution at the 1157th meeting (December 2012). In this interim resolution, the Committee strongly urged the authorities and political leaders of Bosnia and Herzegovina to amend the Constitution and electoral legislation and to bring them in conformity with the Convention requirements without any further delay. The Committee also decided to examine the present case at each of its “Human Rights” meetings until the political leaders and authorities of Bosnia and Herzegovina reach a consensus on the measures required for the execution of this judgment.

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.

Application

Case

Judgment of

Final on

27996/06

SEJDIĆ AND FINCI

22/12/2009

Grand Chamber

Decisions

The Deputies

1. deplored that the authorities and political leaders of Bosnia and Herzegovina have not achieved yet a consensus to amend the Constitution of Bosnia and Herzegovina despite the repeated calls of the Committee of Ministers, in particular in its two interim resolutions adopted so far (CM/ResDH(2011)291 and CM/ResDH(2012)233), and of the international community to that effect;

2. strongly encouraged Bosnia and Herzegovina to take without any further delay all the necessary steps for the full execution of this judgment;

3. decided to resume consideration of this item at their 1169th meeting (30 April 2013), on the basis of information to be provided by the authorities of Bosnia and Herzegovina on the progress achieved in reaching a consensus on the constitutional amendments.

BULGARIA

Application: 41488/98

Judgment final on: 04/10/2000

VELIKOVA GROUP v. Bulgaria

Enhanced procedure: complex problem

Reference texts:

Interim Resolution CM/Res/DH(2007)107

Information document CM/Inf/DH(2011)23

Information document CM/Inf/DH(2013)6rev

Action plans (02/03/2011) DH-DD(2011)256, (04/02/2013) DH-DD(2013)60revE

Communication from a NGO and reply of the government (11/03/2011) DH-DD(2011)298

Decision adopted at the 1115th meeting (June 2011)

Case description: These cases concern death and/or ill-treatment which occurred under the responsibility of law enforcement agents between 1993 and 2004, failure to provide medical care in police custody in due time, excessive use of force during arrests and lack of an effective investigation of the alleged abuses (violations of Articles 2 and/or 3 and 13).

The cases of Rashid, Krastanov and Hristovi concern in particular the failure to take statements from officers from the Anti-Terrorism Squad.

The case of Shishkovi concerns also the lack of domestic remedy allowing to claim damages due to the specific grounds on which the criminal proceedings had been closed, namely the fact that a suspect had not been brought to court within two years after charges (violation of Articles 3 and 13).

Status of execution: The Bulgarian authorities submitted an action plan concerning this group of cases on 11/01/2013 and revised it on 04/02/2013 (see DD-DH(2013)60rev).

Individual measures: The sums awarded for just satisfaction have been paid by the Bulgarian authorities. In the cases of Kazakova, Totev, Krastanov, Osman, Boyko Ivanov, Georgi Dimitrov, Iliev Stefan, Rashid, Sashov and others, Vasil Petrov and Vladimir Georgiev the decisions to discontinue the proceedings were re-examined by the competent prosecutors who established the expiry of the limitation period for the alleged criminal offences. In the case of Velikova, a new investigation has been carried out following the judgment of the Court. As concerns the other cases of this group, the questions which remain open are identified in § 5 of the information document CM/Inf/DH(2013)6rev.

General measures:

- legal framework governing the use of force: The legal framework has been modified. The use of force is now limited to situations in which such use is “absolutely necessary” and the police operations must be planned in such a way as to protect the life and health of the persons concerned. Moreover, it is prohibited to use potentially lethal force against persons not suspected of having committed violent offences and who do not pose a risk to the life and health of others.

- procedural safeguards during police custody: The procedural safeguards have been strengthened. In particular for persons detained on the orders of the prosecutor (detention of 72 hours) and for persons remanded in custody, one order of 2010 provides that each case of injury for which there are indications of ill-treatment should be reported immediately to the prosecutor by the employees of the detention facility.

- training measures concerning the use of force: The case-law of the Court concerning the use of force is taught within the framework of the initial training of law enforcement agents and of the higher education curriculum provided by the Academy of the Ministry of Internal Affairs.

- measures aimed at improving the effectiveness of the criminal and disciplinary investigations: Subsequent to the modification of the status of the police, since 01/01/2008 ordinary prosecutors and criminal courts have become responsible for investigating and considering criminal cases in which police officers are implicated. A specialised unit was set up in the Chief Public Prosecutor’s office; its role is to supervise criminal proceedings against members of the law enforcement agencies in order to ensure impartiality of the prosecutors responsible for investigations. Furthermore, the authorities have indicated that failure to comply with the rules laid down in the Code of Ethics is also a disciplinary offence.

- internal monitoring and impact of the measures taken on the incidence of ill-treatment: The “Inspections” directorate of the Ministry of Interior carries out administrative monitoring of infringements of human rights and participates in disciplinary procedures. Furthermore, all offences committed by police officers, and the results of the verification process, must be notified to the “Human Resources” directorate which draws up monthly and annual reports concerning disciplinary offences committed by police officers. According to Order No. Iз-1415/30.07.2009 of the Minister of Interior, these reports are covered by the obligation of professional secrecy.

Statistical data has been provided concerning the number of allegations of ill-treatment brought to the attention of the authorities and the follow-up action taken.

- failure to take statements from officers of the Anti-Terrorism Squad: The domestic law provides that the identity of police officers from the special units is to be kept secret. The Court has considered that the practice of not allowing these police officers to be identified even by the bodies conducting the investigation is incompatible with the requirements of Article 3 of the Convention. To date, no measure seems to have been taken to address this finding.

For more details concerning the measures adopted and the questions which remain open, see CM/Inf/DH(2013)6rev.

VELIKOVA GROUP

Application

Case

Judgment of

Final on

41488/98

VELIKOVA

18/05/2000

04/10/2000

34805/02

ANGELOV ANGEL VASKOV

25/03/2010

25/06/2010

38361/97

ANGUELOVA

13/06/2002

13/09/2002

69138/01

BOYKO IVANOV

22/07/2008

22/10/2008

18059/05

DIMITAR DIMITROV

03/04/2012

03/07/2012

31365/02

DIMITROV GEORGI

15/01/2009

15/04/2009

61275/00

GEORGIEV VLADIMIR

16/10/2008

16/01/2009

42697/05

HRISTOVI

11/10/2011

11/01/2011

53121/99

ILIEV STEFAN

10/05/2007

10/08/2007

55061/00

KAZAKOVA

22/06/2006

22/09/2006

50222/99

KRASTANOV

30/09/2004

30/12/2004

7888/03

NIKOLOVA AND VELICHKOVA

20/12/2007

20/03/2008

46317/99

OGNYANOVA AND CHOBAN

23/02/2006

23/05/2006

43233/98

OSMAN

16/02/2006

16/05/2006

57883/00

PETROV VASIL

31/07/2008

31/10/2008

47905/99

RASHID

18/01/2006

18/04/2006

14383/03

SASHOV AND OTHERS

07/01/2010

07/04/2010

17322/04

SHISHKOVI

25/03/2010

25/06/2010

42027/98

TOTEVA

19/05/2004

19/08/2004

48130/99

VASILEV IVAN

12/04/2007

12/07/2007

1164th meeting – Notes

The new legislation on the use of force seems to comply with the requirements of the Convention. This legislative reform is also a relevant measure in respect of the effectiveness of investigations, for this new regime obliges the competent authorities to apply similar criteria to the standards which emerge from the case-law of the Court. The setting-up of a specialised unit in the Chief Public Prosecutor’s office responsible for promoting the impartiality and the effectiveness of criminal investigations concerning law enforcement agents is also a positive step forward.

However, these measures do not seem sufficient to ensure the effectiveness of the criminal and disciplinary investigations within the meaning of the Court’s case-law. Further information or clarifications are necessary, in particular on the following issues:

    - Exact procedure followed in case of allegation of ill-treatment by law enforcement agents;

    - Measures taken to ensure the impartiality and independence of the police investigators who carry out investigative steps against other police officers;

    - Possibility under the current legal framework to question special forces officers when their intervention has given rise to allegations of ill-treatment; or, in the absence of such possibility, measures taken or envisaged in order to bring the domestic legal framework and practice in line with the requirements of the Court’s case-law.

Moreover, the practical operation of procedural safeguards during police custody has admittedly been improved, but the reports of the CPT and the reports prepared by observers from civil society show that measures are still necessary in order to overcome some problems which persist and which are related, inter alia, to obtaining the assistance of a duty lawyer in police custody and to the record keeping concerning detainees. It seems also useful to take additional measures in order to ensure that the prosecution authorities are systematically informed of every case for which there are indications of ill-treatment by law-enforcement forces.

The analysis of the statistical data for the period 2006-2009 had shown a positive downward tendency in the numbers of allegations of ill-treatment as compared to the period prior to 2006. However, additional measures seem necessary in order to produce fuller and more accurate data for the last years, in order to allow a complete assessment of the impact of the measures already taken by the authorities. In fact, currently different institutions collect data in this area, in apparently separate files, which creates risks of mistakes and of incidents being recorded twice. Therefore, it seems useful to put in place nationally coordinated data collection in order to produce information concerning allegations of ill-treatment notified to all institutions, as well as concerning the criminal and disciplinary investigations carried out in this connection. As concerns the internal monitoring, it seems useful to examine the possibility of producing public versions of the monthly and/or annual reports on discipline within the Ministry of Interior.

With respect to individual measures, it is necessary to reply to the questions identified in the information document CM/Inf/DH(2013)6rev in order to allow a more in-depth assessment of these measures during one of the next CM-DH meetings of the Committee.

Decisions

The Deputies

1. welcomed the fact that after the legislative amendments, in force since July 2012, the new legal framework governing the use of force seems at present consistent with the requirements of Articles 2 and 3 of the Convention;

2. noted also with interest the creation of a specialised unit in the Chief Public Prosecutor’s office responsible to oversee criminal investigations concerning law-enforcement agents;

3. invited the Bulgarian authorities to provide information on the exact procedure followed in cases of allegations of ill-treatment by the police and on the measures taken to ensure the impartiality and independence of the police investigators who carry out investigative steps against other law-enforcement agents;

4. invited also the authorities to provide information on the precise measures envisaged in order to ensure the possibility of taking statements from agents from the special forces, if allegations of ill-treatment are made against them;

5. encouraged the Bulgarian authorities to continue with their efforts to improve the procedural safeguards during police custody, namely as concerns the systematic notification to the competent prosecutor of cases in which there are indications of ill-treatment, and the possibility of obtaining the assistance of a duty lawyer in police custody;

6. noted, in addition, that it seems useful to put in place a nationally coordinated data collection concerning the allegations of ill-treatment against law enforcement agents notified to all of the institutions, as well as concerning the criminal and disciplinary investigations carried out in this connection, in order to allow full assessment of the impact of the measures taken in this area;

7. decided to declassify the information document CM/Inf/DH(2013)6rev and invited the Bulgarian authorities to submit additional information about the others outstanding questions identified in this document, including as concerns the individual measures.

BULGARIA

Application: 62540/00

Judgment final on: 30/01/2008

ASSOCIATION FOR EUROPEAN INTEGRATION AND HUMAN RIGHTS AND EKIMDZHIEV GROUP v. Bulgaria

Enhanced procedure: complex problem

Reference texts:

Action report (07/08/2012) DH-DD(2012)711E

Communication from Bulgaria (10/01/2013) DH-DD(2013)76F

Information document CM/Inf/DH(2013)7

Decision adopted at the 1028th meeting, p. 10 (June 2008)

Decision adopted at the 1043rd meeting (December 2008) (p. 42)

Case description: The cases of this group concern the lack of sufficient safeguards in Bulgarian law against the risk of abuse which is inherent in every secret surveillance system (violations of Article 8). In the case of Association for European Integration and Human Rights and Ekimdzhiev the applicants did not allege that special surveillance means had been used against them, but the Court found that the very existence of deficient legislation violated their rights.

In the three other cases, the applicants had been subjected to secret surveillance measures in the context of criminal proceedings against them. In two of these cases, the Court found violations of Article 8 due to the manner in which the domestic legislation had been applied. In addition, in three of the cases the Court found that the applicants had not had at their disposal an effective remedy to challenge the use of special surveillance means and to receive compensation, if appropriate (violations of Article 13).

The main shortcomings of the Bulgarian legal framework identified by the Court concern :

- the fact that the law did not provide for any possibility to review the implementation of secret surveillance measures by an external and independent body;

- the fact that the overall control over the system of secret surveillance was entrusted solely to the Ministry of the Interior;

- the lack of regulations specifying how the information collected is processed, preserved and destroyed;

- the lack of sufficient safeguards in relation to surveillance carried out on national security grounds;

- the lack of independent control over the use of intelligence obtained falling outside the scope of the original application for the use of special surveillance means, and

- the fact that a person subjected to secret surveillance is not notified at any moment, except in cases in which he or she is prosecuted in the context of criminal proceedings on the basis of information obtained through secret surveillance.

Status of execution: On 26/06/2012, the Bulgarian authorities provided a revised action report concerning the execution of these judgments (DD-DH(2012)711). On 10/01/2013, they provided additional clarifications (see DD-DH(2013)76).

Individual measures: no individual measures are necessary in the cases of Kirov, Association for European Integration and Human Rights and Ekimdzhiev and Goranova-Karaeneva (for more details, see the information document CM/Inf/DH(2013)7).

As concerns the case of Georgi Yordanov, it should be indicated whether the documents containing information gathered through secret surveillance measures in breach of domestic law have been destroyed at the end of the retention period of 10 years which expired in October 2012.

General measures:

- possibility of judicial review of the implementation of the secret surveillance measures: in 2008 has been introduced the obligation to provide the judge who has granted the warrant to use special surveillance means with some documents and information concerning the results of the secret surveillance.

- external control over the secret surveillance system: in 2009 has been introduced an external control over the global functioning of the secret surveillance system and over the implementation of surveillance measures. These two types of control are the responsibility of a special sub-commission of the Bulgarian Parliament. This parliamentary sub-commission is also competent, under certain conditions, to inform the persons concerned of the fact that they have been subjected to unlawful secret surveillance measures. To date, the sub-commission has not sent any notification of unlawful secret surveillance.

- filtering, examination, protection and destruction of data obtained through secret surveillance : in 2008, the procedure for destruction of data obtained through secret surveillance which has not been used for the production of pieces of evidence has been specified.

- judicial compensatory remedy: in 2009 has been introduced the possibility to request compensation for damages related to unlawful secret surveillance measures under the State Responsibility Act.

- Statistics concerning the use of special surveillance means: in 2011 secret surveillance measures have been applied to 7881 persons. There is an increase of 30% as compared to the number of individuals who have been subjected to secret surveillance in 2010. The total number of the applications for the use special surveillance means in 2011 is 13846 and all but 116 of these requests have been granted by the courts. The president or the vice-presidents of the Sofia City Court have examined 6010 surveillance applications and only 2 of those requests have been rejected.

A more detailed presentation of the current legal framework and of the statistical data provided by the authorities can be found in the information document CM/Inf/DH(2013)7.

ASSOCIATION FOR EUROPEAN INTEGRATION AND HUMAN RIGHTS AND EKIMDZHIEV GROUP

Application

Case

Judgment of

Final on

62540/00

ASSOCIATION FOR EUROPEAN INTEGRATION AND HUMAN RIGHTS AND EKIMDZHIEV

28/06/2007

30/01/2008

12739/05

GORANOVA-KARAENEVA

08/03/2011

08/06/2011

5182/02

KIROV

22/05/2008

22/08/2008

21480/03

YORDANOV GEORGI

24/09/2009

24/12/2009

1164th Meeting - Notes

The introduction of external control carried out by the Sub-commission on special surveillance means which, according to the authorities, could be exercised ex officio or upon request from private persons, is a very positive progress which should be welcomed. In order to respond entirely to the Court’s findings whereby current legislation does not provide for the obligation to examine requests for information from private persons, it seems useful to invite the Bulgarian authorities to supplement the current legal framework in this respect and to specify the rules which apply in relation to notification of the results.

Similarly, the introduction of a judicial remedy which allows requesting compensation for unlawful surveillance is an important advance. However, in order to be able to assess the practical effectiveness of this remedy, clarifications are necessary on the investigative powers of the courts examining such requests (e.g. the possibility to access different documents relating to secret surveillance) and on the existence of specific procedural rules for the examination of such kind of requests.

Moreover, it seems useful to invite the authorities to present their assessment of the possibility to improve the legal framework in some areas, such as the use of the technique of the “accounts” allowing real-time wiretapping, the reasons given for surveillance request based on national security grounds and the procedure which allows to use material obtained through secret surveillance falling outside the scope of the authorisation initially granted (the provisions governing the last two areas having been criticised by the Court).

Additional information is also necessary as concerns the procedures governing the filtering, the analysis, the protection and the destruction of data obtained through secret surveillance (for more details, see CM/Inf/DH(2013)7).

Finally, certain shortcomings in the practical implementation of the legal safeguards seem to require the attention of the Bulgarian authorities, such as the practice to submit insufficiently motivated applications for secret surveillance, noted by the Sub-commission on special surveillance means. Moreover, the Deputies might wish to invite the Bulgarian authorities to provide their assessment on the question whether the presidents and vice-presidents of certain high-volume courts have adequate means to conduct an in-depth examination of the very numerous surveillance requests which they receive.

Decisions

The Deputies

1. welcomed the legislatives reforms adopted by the Bulgarian authorities in reply to the Court’s judgments and the decision taken by the Committee in this group of cases during the 1028th meeting (June 2008) (DH), and in particular the introduction of an independent control mechanism over the secret surveillance system and of a domestic remedy which allows obtaining compensation for unlawful surveillance;

2. invited the authorities to supplement the domestic provisions to provide for an obligation for the parliamentary Sub-commission in charge of control over the secret surveillance system to carry out a verification at the request of a private person and to specify the procedure and the content of the information communicated to private persons as concerns the results of the verification accomplished;

3. invited, in addition, the authorities to provide information on the investigating powers of the courts examining claims for compensation for unlawful secret surveillance and on the existence of special procedural rules for the examination of such claims;

4. invited the authorities to present their assessment of the possibility to improve the legal framework in some areas, such as the reasons given for surveillance applications based on national security grounds and the procedure allowing to use material obtained through secret surveillance falling outside the scope of the warrant initially granted;

5. invited also the authorities to provide additional information on the procedures governing the filtering, analysis, protection and destruction of data obtained through secret surveillance and to reply, in particular, to the questions identified in the information document CM/Inf/DH(2013)7 in this field;

6. invited, finally, the Bulgarian authorities to provide their assessment of the practical operation of the safeguards provided under domestic law, and more particularly of the practice to submit secret surveillance applications which do not contain adequate reasoning under domestic law and of the capacity of president and vice-presidents of some high-volume courts to carry out an in-depth examination of the very numerous surveillance requests received by them;

7. endorsed the assessments contained in the information document CM/Inf/DH(2013)7, invited the authorities to provide replies to the other questions identified in this document, including on the individual measures in the case of Georgi Yordanov, and decided to declassify this information document.

FRANCE

Application: 25389/05

Judgment final on: 26/07/2007

GEBREMEDHIN (GABERAMADHIEN) v. France

Possible transfer to be decided

Reference texts:

Action report (16/05/2012) DH-DD(2012)636F

Communication from the French authorities (07/07/2008) DD(2008)434F

Communication from the French authorities (17/01/2013) DH-DD(2013)140F

Communication from the French authorities (25/02/2013) DH-DD(2013)196

Communication from ANAFE (Association nationale d’assistance aux frontières pour les étrangers) and comments from the French authorities (02/10/2007) DD(2007)531F

Communication from ANAFE (Association nationale d’assistance aux frontières pour les étrangers) and comments from the French authorities (26/10/2007) DD(2007)600F

Communication from ANAFE (Association nationale d’assistance aux frontières pour les étrangers) and comments from the French authorities (20/02/2008) DD(2008)119F

Memorandum CM/Inf/DH(2013)9rev

Decision adopted at the 1051st meeting (March 2009) (p. 40)

Case description: At his arrival at the Paris-Charles de Gaulle airport (July 2005), the applicant, an Eritrean reporter, had requested leave to enter France by virtue of the “procedure for claiming asylum at the border” (a procedure open to aliens who arrive at the border, without the necessary documents, with a view to requesting asylum in France). He was held in a waiting zone pending the examination of his request.

The European Court held that the applicant had no effective remedy to defend his complaint that his return to Eritrea, due to a decision to refuse leave to enter France which he had challenged, exposed him to a risk of ill-treatment. It took into consideration in particular the fact that no remedy, among those available to the applicant, had automatic suspensive effect as requested by the Convention (violation of Article 13 combined with Article 3).

Status of execution:

Individual measures: no further individual measure is required. The question of the effectiveness of the remedy is no longer an issue for the applicant. He was granted refugee status in France in November 2005. The European Court held that “the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant”. The sums awarded to the applicant for costs and expenses have been paid.

General measures: a law of 20 November 2007 introduced an appeal with automatic suspensive effect to challenge the decisions refusing leave to enter France as an asylum-seeker (Articles L213-2, L213-9, L221-3 of the Immigration and Asylum Code and Article L777-1 of the Code of administrative justice). However, criticism has been expressed, calling into question the “effectiveness” of the new appeal, in particular in view of its application in practice (see the communications made to the Committee of Ministers by an NGO, by the Ombudsman and the National consultative commission on human rights). Considering that the Court had been seised with applications raising the question of the effectiveness of the new appeal, the Committee of Ministers decided in March 2009 to suspend its examination of this case until the Court has ruled upon the similar pending cases. However, these applications were declared inadmissible or struck out without the Court deciding on the question of effectiveness of the new appeal. Recalling the legislative measures taken in this case and the position of France, the action report requests the closure of this case’s examination.

Application

Case

Judgment of

Final on

25389/05

GEBREMEDHIN (GABERAMADHIEN)

26/04/2007

26/07/2007

1164th meeting - Notes

The respondent State requests the closure of the case, whereas the Secretariat notes that there are outstanding questions concerning the general measures adopted.

This case is currently examined under the standard procedure (measures having been adopted rapidly and its examination having been suspended since March 2009). Given that, at this stage, the Deputies will have to decide how examination of the case should continue, it would appear possible to debate the case without changing its supervision method in advance (the question of the supervision method being related to the merits of the questions to be debated).

Decisions

The Deputies

1. recalled their March 2009 decision to resume consideration of this item once the European Court of Human Rights had ruled upon similar pending cases, in which the question of the effectiveness of the appeal provided for by the law of 20 November 2007 was raised;

2. noted that to date, the Court has not decided on the question of the effective nature of the appeal, but that it communicated two applications to the French authorities raising this question and that it might be called upon to decide on this issue;

3. concerning the present case, considered the measures set out in the French authorities’ action report satisfactory and requested the Secretariat to prepare a draft final resolution;

4. decided to declassify the memorandum CM/Inf/DH(2013)9rev.

GEORGIA

Application 25091/07

Judgment final on 26/07/2011

ENUKIDZE AND GIRGVLIANI v. Georgia

Enhanced procedure: complex problem

Reference texts:

Action Plan (03/12/2012) DH-DD(2012)1134

Action Plan: up-date No.1 (01/02/2013) DH-DD(2013)171

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

Decision adopted at the 1157th meeting (December 2012)

Case description: In this case the applicants’ 28 year old son was abducted and beaten to death in 2006, by a group of senior officers of the Ministry of Interior. 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 and was devoid of integrity. 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 (reduction of their sentences by half by presidential pardon, then release on licence granted by the Tbilisi City Court) did not constitute adequate conviction punishment.

Status of execution: At the 1157th meeting (December 2012), the Committee of Ministers noted the action plan presented by the Georgian authorities and instructed the Secretariat to prepare an assessment for the 1164th meeting (March 2013).

Application

Case

Judgment of

Final on

25091/07

ENUKIDZE AND GIRGVLIANI

26/04/2011

26/07/2011

1164th meeting - Notes

I. Information provided by the authorities

In their preliminary remarks on the action plan, the Georgian authorities underlined that the new Georgian Government is committed to proceeding in a timely manner with the effective execution of the present judgment, as regards the adoption of both individual and general measures. The authorities indicated that the action plan will be regularly updated; a first update was presented on 1 February 2013

Individual measures: A new investigation will be conducted with the view to addressing the shortcomings of the initial investigation by the Ministry of the Interior and the Prosecutor's Office. The investigation will be conducted by the office of the Chief Prosecutor within which an investigator will be appointed to lead the proceedings. The selection procedure for the above-mentioned investigator is underway; the person must be a highly competent jurist (preferably an experienced former judge), who, in the past, has demonstrated impartiality, integrity, and fairness and has a strong sense of justice. According to the authorities, the investigation to be conducted by the office of the Chief Prosecutor, will meet the requirements of effectiveness and impartiality. The authorities also detailed the measures proposed in the context of this investigation. According to the information provided in the framework of the first update of the action plan, the new investigation was opened on 26 November 2012. Several witnesses were heard (including witnesses who were not interrogated in the past) and evidence dismissed from the initial investigation was collected.

Particular care has been taken to involve the applicant in the new investigation procedure (see letter of 19/11/2012, attached to the action plan). Unless otherwise decided by the Minister of justice and the Chief Prosecutor, Mr Girgvliani will have access to the entirety of the case file and the information collected. Two information meetings between Mr Girgvliani and the investigator in charge of the new investigation have already taken place. In addition, the public will be informed of the methods of execution of this judgment by means of written communication or briefings with the media.

The authorities indicated that information on the measures envisaged to remedy the shortcomings of the investigation conducted by the prosecutors of the Tbilisi City's Prosecutor's Office, as well as on the issue of the presidential pardon granted to the four convicted persons, will be provided in the next update of the action plan. Finally, concerning the shortcomings identified in the judicial procedure and in order to guarantee the independence of the judiciary, it is envisaged as a first step to allow the latter to consider this issue. In this regard, the Minister of Justice addressed a letter to the President of the Supreme Court; the official response of the President of the said Court shall be communicated to the Committee of Ministers.

General measures:

a) According to the authorities, national legislation in force does not meet the requirements of impartiality that should be met by investigating bodies in cases falling under Articles 2 and 3 of the Convention. A study has been initiated within the Ministry of Justice with the aim of proposing an amendment to the ministerial decision of 29/09/2010 regarding investigating powers. The results of this work will be presented to the Committee of Ministers.

b) Similarly reflective work and drafting is underway with a view to preparing a draft law amending Article 57 of the new Code of Criminal Procedure which contains restrictions on the civil party’s access to the case-file (it should be noted that this Article replaced Article 69j of the former Code of Criminal Procedure criticised by the Court and that it included restrictions additional to those existing at the material time).

c) A draft law amending the Code of prisons in order to prohibit the placement of persons accused in the same case, in the same cell, was submitted to Parliament, which will have a first reading during the spring session 2013.

II. Assessment

The information presented on the individual measures regarding the new investigation opened on 26/11/2012 is promising. It should be noted that newly appointed persons will be in charge of this investigation. Given that, as the authorities indicated, domestic legislation in force does not satisfy the requirements of impartiality that should be met by investigating bodies in cases falling under Articles 2 and 3 of the Convention, it would be useful if information is provided on concrete measures taken, in the framework of the new investigation, aimed at ensuring the required institutional independence (judgment Ramsahai and others against the Netherlands, Grand Chamber, 15/05/2007).

The information provided on general measures should be noted with satisfaction. It can be assessed in the light of additional information that will be provided. Information is also awaited on the prevention of similar violations of Article 38 of the ECHR.

Decisions

The Deputies

1. noted with satisfaction the detailed information provided by the Georgian authorities in their action plan and its update regarding the measures taken and envisaged for the execution of the present judgment;

2. noted that the Georgian authorities will keep the Committee regularly informed on the developments relating to the new investigation and invited the authorities to provide additional information concerning the measures taken to ensure the institutional independence of the authorities in charge of this investigation;

3. invited also the authorities to provide the additional information announced concerning the general measures as well as information on the measures aimed at ensuring the prevention of similar violations of Article 38 of the Convention.

GREECE

Applications: 54447/10, 71563/01

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

MICHELIOUDAKIS v. Greece

DIAMANTIDES No. 2 GROUP

Enhanced procedure: pilot judgment, complex structural problem

Reference texts:

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

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

Action plan (01/02/2013) DH-DD(2013)96

Communication from Greece (17/12/2012) DH-DD(2012)1186F

Decision adopted at the 1136th meeting (March 2012) (Manios group including at that time the Diamantides No. 2 group)

Decision adopted at the 1150th meeting (September 2012)

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

The Court highlighted that the structural nature of the problem identified was confirmed by the fact that over 250 cases against Greece, completely or partially relating to length of court proceedings, were currently pending before it and that over 50 of those cases concerned exclusively proceedings before criminal courts. The Court therefore concluded that Greece must, within one year from the date on which the present judgment became final (03/07/2013), put in place an effective domestic remedy, or a set of remedies, capable of affording adequate and sufficient redress in those cases in which a reasonable time limit was exceeded in proceedings in criminal courts, and to do so in accordance with the principles of the Convention as established in the case-law of the Court. Pending the adoption of the said remedy, the Court will adjourn the proceedings in all the similar applications pending before it, subject to the Court having the faculty, at any time, to declare inadmissible a case of this type or to strike it out of the list of cases following a friendly settlement between the parties or a settlement of the dispute by other means, in pursuance of Articles 37 and 39 of the Convention.

Status of execution:

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

General measures: Action plan transmitted on 1st February 2013.

Application

Case

Judgment of

Final on

54447/10

MICHELIOUDAKIS

03/04/2012

03/07/2012

71563/01

DIAMANTIDES No. 2 (list of cases)

19/05/2005

19/08/2005

1164th meeting - Notes:

The Michelioudakis judgment relating to the excessive length of criminal proceedings is the second pilot judgment concerning the length of proceedings in Greece. The first pilot judgment on the administrative proceedings (Vassilios Athanasiou and others no. 50973/08) was examined by the Committee for the last time at its 1136th meeting (March 2012), where the Committee welcomed the adoption on 06/03/2012, by the Greek Parliament, of the law introducing a compensatory remedy before the expiry of the deadline set by the Court (21/03/2012).

At its 1150th meeting (September 2012), the Committee of Ministers invited the Greek authorities to comply in a timely manner with the Michelioudakis pilot judgment and to introduce an effective domestic remedy or a set of remedies for excessive length of criminal proceedings within the time-limit set in the pilot judgment (03/07/2013) and also covering the cases currently pending before the Court.

In their letter of 17 December 2012 (DD-DH(2012)1186), the Greek authorities requested an extension of the time-limit for the submission of their action plan (initial deadline: 03/01/2013) and transmitted this action plan on 1st February 2013.

Decisions

The Deputies

1. noted that the action plan on this case was presented to the Committee of Ministers on 1st February 2013 and instructed the Secretariat to prepare an assessment;

2. strongly encouraged the Greek authorities to promptly take the necessary measures in order to introduce, before the expiry of the time-limit set by the Court in the pilot judgment (03/07/2013), an effective domestic remedy, or set of remedies for excessive length of criminal proceedings, taking duly into account the indications given by the Court in the said pilot judgment;

3. agreed to resume consideration of this question at their 1172nd meeting (June 2013) (DH) on the basis of the assessment by the Secretariat and of any additional information submitted by the authorities regarding the execution of this pilot judgment and of the judgments in the Diamantides No. 2 group.

GREECE

Applications: 40150/09, 53401/99

Judgments final on: 30/01/2013, 10/07/2003

GLYKANTZI v. Greece

KONTI-ARVANITI GROUP v. Greece

Enhanced procedure:

pilot judgment

Reference texts:

Final Resolution ResDH(2005)64 concerning cases relating to excessive length of civil proceedings in Greece (case of Academy Trading Ltd and others against Greece and other cases)

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

Decision adopted at the 1136th meeting (March 2012) (Konti-Arvaniti group / Manios group)

Case description: Pilot judgment concerning the violation of the right to a fair trial on account of excessive length of civil proceedings and the absence of an effective remedy in this respect (violations of Articles 6§1 and 13). The European Court noted that in the period subsequent to the adoption by the Committee of Ministers of Interim Resolution CM/ResDH(2007)74, which primarily concerned the excessive length of proceedings before administrative courts, it had delivered over 30 judgments (see Konti-Arvaniti group of cases) finding violations of Article 6§1 in respect of length of proceedings before civil courts (notably on account of particularly lengthy proceedings before first instance courts).

The Court highlighted that the structural nature of the problem identified in the present case was confirmed by the fact that over 250 cases against Greece, completely or partially relating to excessive length of court proceedings, were currently pending before it and that over 70 of those cases exclusively concerned proceedings before civil courts. The Court therefore concluded that Greece must, within one year from the date on which the present judgment became final (i.e. by 30/01/2014), put in place an effective domestic remedy, or a set of remedies, capable of affording adequate and sufficient redress in cases in which the reasonable time limit was exceeded in civil court proceedings, and to do so in accordance with the principles of the Convention as established in the case-law of the Court. Pending the adoption of the said remedy, the Court will adjourn the proceedings in all the similar applications pending before it, subject to the Court having the faculty, at any time, to declare inadmissible a case of this type or to strike it out of the list of cases following a friendly settlement between the parties or a settlement of the dispute by other means, in pursuance of Articles 37 and 39 of the Convention.

Status of execution:

Individual measures: Information is awaited concerning the proceedings still pending in the Glykantzi case and the Konti-Arvaniti group.

General measures: Action plan awaited (deadline: 30/07/2013).

Application

Case

Judgment of

Final on

40150/09

GLYKANTZI

30/10/2012

30/01/2013

53401/99

KONTI-ARVANITI GROUP (list of cases))

10/04/03

10/07/2003

1164th meeting - Notes:

The Glykantzi judgment relating to excessive length of civil proceedings and the absence of an effective remedy in this respect is the third pilot judgment concerning length of proceedings in Greece (for an overview of the other judgments, see the notes regarding the Michelioudakis judgment).

It is recalled that the Committee of Ministers, in 2005, closed the examination of four cases concerning excessive length of civil proceedings in Greece on the basis of a series of measures envisaged under Laws Nos. 2915/2001, 3327/2005 and 3346/2005 (Final Resolution ResDH(2005)64). However, the problem persisted as was stressed in Interim Resolution CM/ResDH(2007)74, to which the Court also referred in the present pilot judgment (§§ 68-69).

The European Court noted the measures taken by the Greek authorities in particular during the recent years, with a view to streamlining the procedures before the civil courts and to shortening the time of consideration of the cases. Furthermore, the Court noted with satisfaction the adoption of Law No. 3994/2011, containing a set of provisions aimed at simplifying and accelerating civil proceedings. However, notwithstanding the various legislative initiatives which showed that the competent authorities were not indifferent to the acute problem of excessive length of court proceedings, the domestic legal system had not «to date adopted a remedy or remedies enabling the parties concerned to enforce their right to have their cases heard within a reasonable time in civil cases» (§70 of the judgment).

Decisions

The Deputies

1. noted that in the pilot judgment Glykantzi, the third pilot judgment delivered by the Court concerning the length of proceedings in Greece, the Court invited the authorities, within the time limit of one year from the date on which this judgment became final (i.e. by 30/01/2014), to introduce an effective domestic remedy, or a set of remedies, capable of affording adequate and sufficient redress in the event of exceeding the reasonable time;

2. strongly encouraged the Greek authorities to take, within the time-limit indicated by the Court, the necessary measures to this effect, taking duly into account the indications given by the Court in this pilot judgment;

3. in the light of the above, invited the authorities to present by 30/07/2013 at the latest their action plan setting out the individual and general measures taken and envisaged with a view to the execution of this pilot judgment and of the judgments in the Konti-Arvaniti group.

IRELAND

Application 25579/05

Final judgment 16/12/2010

A. B. and C. v. Ireland

Enhanced procedure : complex problem

Reference texts:

Updated Action plan (30/11/2012) DH-DD(2012)1124

Updated Action plan (08/02/2013) DH-DD(2013)129E

Communication from an association (Irish Family Planning Association (04/08/2011) DH-DD(2011)628E

Communication from a NGO (Irish Council for Civil Liberties) (17/08/2011) DH-DD(2011)645

Communication from a NGO (National Women's Council of Ireland) (03/08/2012) DH-DD(2012)738E

Communication from a NGO (Irish Family Planning Association (IFPA)) (10/08/2012) DH-DD(2012)753E

Communication from a NGO (Irish Council for civil liberties) (19/09/2012) DH-DD(2012)882E

Communication from a NGO (European Centre for Law and Justice) (18/09/2012) DH-DD(2012)917E

Communication from a NGO (Amnesty International) (18/02/13) DH-DD(2013)197

Communication from a NGO (Irish Family Planning Association - IFPA) (26/02/13) DH-DD(2013)236E

Decision adopted at the 1157th meeting (December 2012)

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 individual measure appears necessary.

General measures: At its last examination of the case, the Committee noted with satisfaction that the expert group tasked with advising the Irish authorities on how to implement the judgment had submitted its report, which identified four options – guidelines, secondary legislation, primary legislation and primary legislation coupled with regulations – and that the authorities intended to decide on the option to be pursued before 20 December 2012.

The Committee highlighted in this connection that, as noted by the expert group, 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. The Committee also noted in this respect the view of the expert group according to which only the implementation of a statutory framework would provide a defence for medical doctors from criminal prosecution.

Application

Case

Judgment of

Final on

25579/05

A. B. AND C.

16/12/2010

Grand Chamber

1164th meeting - Notes

The latest update to the Action plan confirms that the authorities have chosen the fourth option identified by the expert group, namely the adoption of legislation with regulations. They will also make appropriate changes to the criminal law in this area. According to the authorities, the draft legislation and regulations will be published within the next few months.

Concerning the situation of women who (like the third applicant) are of the opinion that their life may be at risk due to their pregnancy, the authorities reiterate the information previously submitted on the remedies available at the time of the judgment, whilst accepting that the European Court found that these did not meet the requirements of the Convention. They add that the wide media publicity and attention given to the judgment means that medical practitioners are now aware of the need to determine if there is a real and substantial risk to the life of the patient, and if such a risk can only be averted by a termination of pregnancy.

The authorities will submit their next update to the action plan on 8 May 2013.

Decisions

The Deputies

1. recalled the legal obligation on Ireland 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, and that only the implementation of a statutory framework would provide a defence for medical doctors from criminal prosecution;

2. noted with satisfaction that the authorities have decided to implement the judgment by way of legislation and regulations;

3. welcomed the indicative timetable presented according to which it is the authorities’ intention that the general scheme of a Bill would be published in April and that the Bill itself would be introduced in the Parliament in the summer session with the goal of having it enacted by the end of July, having due regard to the prerogative of parliament;

4. recalled 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 as well as their invitation to the Irish authorities to take all necessary measures in that respect pending full implementation of the judgment, and in that connection welcomed the development of and intention to roll out shortly the Irish Maternal Early Warning System to standardise the management of acutely ill pregnant women;

5. invited the authorities to keep the Committee informed on developments, including on the content of the legislation and on the timetable.

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:

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

Communication from Italy (04/03/2013) DH-DD(2013)235

Communication from Italy (06/03/2013) DH-DD(2013)245

Communication from the government of Italy (31/05/2012) DH-DD(2012)544F

Communication of the applicants’ lawyers (16/07/2012) DH-DD(2012)668

Communication of the applicants’ lawyers (10/09/2012) DH-DD(2012)845E

Communication from a NGO (Forensic union for the protection of human rights) (25/07/2012)

DH-DD(2012)727E

Communication from a NGO (Amnesty International) (14/08/2012) and reply by the government

DH-DD(2012)744 + appendix DH-DD(2012)744add

Communication from the UNHCR DH-DD(2012)811 (05/09/2012) and reply from Italy DH-DD(2012)856

Decision adopted at the 1157th meeting (December 2012)

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: In order to assist the execution process, the European Court notably 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 of July 2012, the Italian authorities confirmed that when the judgment became final, contacts were immediately taken with the Libyan authorities and 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 on these contacts and in particular no concrete information on the situation of any of the applicants.

Issues concerning the payment of just satisfaction:

In its judgment, the European Court awarded the applicants just satisfaction for non-pecuniary damage and indicated that this was to be held by the representatives in trust for the applicants. However, because of certain regulatory obstacles to this mode of payment, the authorities attempted to locate and pay each applicant individually. At a meeting with representatives of the Department for the Execution of judgments, on 28 January 2013 to discuss this issue, the authorities stated that they their attempts to locate and pay each applicant individually had failed. Accordingly, they confirmed that they are now seeking to overcome these obstacles in order to pay the applicant’s representatives, in accordance with the judgment. The authorities will keep the Committee updated on progress achieved.

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 government indicated in the action plan of July 2012 that this policy of push-backs will not be resumed. 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, in order to improve the reception of migrants and refugees in Libya.

Application

Case

Judgment of

Final on

27765/09

HIRSI JAMAA AND OTHERS

23/02/2012

Grand Chamber

1164th meeting – Notes

Individual measures: In view of the need highlighted by the European Court, for the authorities to take all possible steps to obtain the necessary assurances, the lack of information on the steps taken - beyond the initial contacts with the Libyan authorities –, and on any concrete results achieved is of concern. Also, in the light of the time elapsed, apparently without the required protection of the applicants having been secured, and the ensuing risk that some applicants may have been arbitrarily repatriated or otherwise prevented from obtaining redress, it might be appropriate for the authorities to undertake other possible actions, in parallel to those engaged vis-à-vis the Libyan authorities, in order to gain information on the fate of those applicants in respect of whom information is still missing with a view to taking any appropriate action.

General measures: the Committee invited the authorities to provide further information on the current law and practice, and precise information on the practical consequences of the new policy. In response, the Italian authorities submitted information on 24 October 2012 (see DH-DD(2012)1011).

This information provides some clarifications on the current law and practice, in particular concerning the treatment of migrants when they arrive at reception centres in Lampedusa. At those centres, the provisions for processing asylum applications under Italian law apply. These reflect European provisions on asylum law and ensure that asylum seekers are given information about the asylum system and access to interpreters. It is stressed that the request for asylum only needs to be expressed verbally, and that migrants are provided with support and information on applying for asylum in a range of languages.

According to the information provided, when vessels transporting migrants are intercepted at sea by Italy, they are now transported to reception centres in Italy, notably in Lampedusa. More detailed information, would, however, be useful as regards the regulatory framework set up after the judgment to ensure that in case of interceptions at sea, the prohibition of the collective expulsion of aliens is also effective and that guarantees exist to ensure that each individual’s situation is properly examined (§185 of the Court’s judgment). This issue was raised bilaterally with the authorities on 28 January 2013 and further information is expected.

Decisions

The Deputies

1. noted, as regards individual measures, the latest information regarding the repeated requests from the Italian to the Libyan authorities to obtain assurances against possible ill-treatment in Libya or the applicants’ arbitrary repatriation to Somalia and Eritrea, as required by the Court’s judgment, and that the Italian authorities have indicated that they have not been able to obtain the assurances due to objective difficulties arising from developments in Libya;

2. noted, that faced with this situation, the Italian authorities’ expressed their intention to continue their contacts with the Libyan authorities and, considering the significant amount of time elapsed since the judgment became final without necessary assurances having been obtained, to also consider other possible actions, in particular in response to possible requests made by the applicants’ representatives;

3. noted, as regards general measures, the Government’s repeated assurances that the ordinary Convention compliant guarantees contained in Italian laws and regulations as regards the treatment of refugees and asylum seekers, in particular as regards the latter’s access to relevant domestic procedures, would be consistently applied in all circumstances, including during military and coast guard operations on the high seas;

4. noted the Italian Government’s indication that, in the light of the measures taken and the assurances and commitments made, Italy had complied with its obligations under Article 46 as far as the obligation to take individual and general measures was concerned;

5. noted the recent developments aimed at overcoming the legal obstacles to the payment of the just satisfaction to the applicants’ representatives, as ordered by the Court in its judgment, to be held on trust for the applicants, and expressed their expectation that payment as ordered by the Court, together with default interest, would be made without further delay;

6. invited the authorities to submit a comprehensive, consolidated action report with a view to allowing a conclusive assessment of the case.

ITALY

Application: 14737/09

Judgment final on: 12/10/2011

SNEERSONE AND KAMPANELLA v. Italy

Enhanced procedure: urgent individual measures

Reference texts:

Action plan (24/01/2012) DH-DD(2012)85E

Revised Action plan (30/05/2012) DH-DD(2012)601E

Communication from the applicants (22/03/2012) DH-DD(2012)409E

Communication from the authorities on individual measures (11/01/2013) DH-DD(2013)34

Communication from the authorities on individual measures (05/02/2013) DH-DD(2013)139

Case description: The case concerns the unjustified interference with the applicants’ – a mother and her child born in 2002 – right to respect for their family life, due to decisions of the Italian courts of 2008 and 2009 which ordered the return of the child, who was living with his mother in Latvia, to his father in Italy, given without due consideration of the child’s best interest (violation of Article 8).

Status of execution: On 24 January 2012, the Italian authorities submitted an Action plan, followed by a revised version presented on 30 May 2012. In March 2012, the applicants presented a submission under Rule 9§1 as regards the individual measures and the payment of the just satisfaction, to which the authorities responded on 5 April 2012.

Individual measures: the European Court considered that the mere existence of the order for the child’s return to Italy, irrespective of its actual enforcement, constitutes an interference with the applicants' right to respect of their family life, due to the adverse psychological effects it causes to the child (§88 of the judgment). Based on these findings, it was considered urgent to ensure that the return order is set aside by the relevant Italian authorities, so as to relieve the Latvian authorities from the obligation - under Regulation (EC) No. 2201/2003 - to enforce such order.

The Italian authorities indicated that the initial return order issued in 2008 was followed by a decision of 9 November 2010 given by the Rome Youth Court, which granted sole custody of the second applicant to the father and ordered again the return of the child in Italy. Following the European Court’s judgment, the Public Attorney’s Office brought proceedings to set aside the decision of 9 November 2010, which represents the final domestic decision on the return of the child. The authorities underlined that there is no risk of enforcing the return order pending its setting aside.

The first hearing was scheduled on 27 June 2012. The mother of the child refused the notification of the hearing served by the Italian authorities under the procedure set by Regulation (CE) No. 1393/2007, since it was not accompanied by a translation into a language she understood (Latvian or Russian), as required under this Regulation. On 2 April 2012, the Rome Youth Court therefore served her a second notification, accompanied by a translation into Russian.

By a letter of 11 January 2013, the authorities indicated that both parents failed to appear at the hearing of 27 June 2012 and that the child’s father could not be found at the last known address. The court ordered a search to locate the father and reserved its decision pending the outcome of this search. In a communication of 5 February 2013, the authorities updated this information, by indicating that the proceedings were resumed in November 2012, with the participation of the father, who had been found in the meantime. The authorities also indicated that the mother of the child can still exercise her right to join the proceedings personally or through a representative.

General measures: the revised action plan indicates that the European Court’s judgment is available on the website of the Court of Cassation and on other relevant websites and that it was moreover disseminated to the relevant authorities. The Italian authorities are currently assessing the need to adopt further general measures.

Application

Case

Judgment of

Final on

14737/09

SNEERSONE AND KAMPANELLA

12/07/2011

12/10/2011

1164th meeting – Notes

It should be noted that the Italian authorities have promptly reacted to the urgency of the situation, by bringing on their own motion proceedings to set aside the return order and the decision to grant the sole custody of the second applicant to the father, which provides the basis of the return order. The authorities moreover assured that there is no risk of enforcing the return order pending the outcome of these proceedings.

Despite the efforts made by the authorities to reach a swift solution, the court had to reserve its decision on setting aside the return order as neither the first applicant, yet duly notified, nor the father of the child appeared at the hearing of 27 June 2012, and the father could not be found.

As regards the current status of these proceedings, it appears from the very recent information submitted by the authorities that the proceedings for setting aside the return order were resumed in November 2012, with the participation of the child’s father. As far as the mother is concerned, the authorities indicated that she still has the possibility to join the proceedings, in person or through a representative.

Insofar as the obstacles to the continuation of the proceedings were removed, it is now for the authorities to ensure that they are brought to a swift conclusion. Moreover, in order to safeguard the effectiveness of the surveillance of the execution process in this case, it appears appropriate to recall the importance that the Committee is informed of any progress in the adoption of the individual measures.

Decisions

The Deputies

1. recalled that in this case, the European Court found that the mere existence of the order for the return of the second applicant to Italy, irrespective of its actual enforcement, amounted to an interference with the applicants' right to respect of their family life, due to the adverse psychological effects it causes to the child;

2. noted that the Public Attorney’s Office brought proceedings to set aside the return order and that the authorities assured that the order shall not be enforced;

3. noted that, after a stay of the proceedings ordered due to the parents’ failure to appear at the first hearing, the father was located by the judicial authorities and the proceedings for setting aside the return order were resumed; the first applicant has the possibility to exercise her right to participate therein personally or by representation;

4. invited the Italian authorities to continue their efforts in order to ensure that these proceedings are brought to a swift conclusion and to inform the Committee of Ministers of the progress made in the adoption of the individual measures in this case.

MALTA

Application: 64791/10

Judgment final on: 17/10/2012

M.D. AND OTHERS v. Malta

Enhanced procedure : urgent individual measures/ complex problem

Reference texts:

Action plan (11/02/2013) DH-DD(2013)152E

Case description: The first applicant is the mother of two minor children, the second and third applicants. In 2005, following an investigation of the family by social services, the competent authority issued a care order placing the children in an institute. After having heard objections from the first applicant, the Juvenile Court confirmed the care order. In parallel, proceedings were brought against the first applicant and her partner, who were both convicted of cruelty and negligence towards the children. Later, the couple separated. The mother was authorised to see the children under supervision, and was finally able to spend weekends and public holidays with them. Due to her conviction, the mother was automatically and permanently deprived of her parental rights.

The applicants tried to challenge the final care order but no remedy was available and the European Court found a violation of Article 6§1 due to the lack of access to a court.

The Court considered that the automatic forfeiture of parental rights, as well as the lack of access to a court to challenge this measure, failed to strike a fair balance between the interests of the children, those of their mother and of society at large, in violation of Article 8.

Under Article 46 of the Convention, the Court indicated that in order to remedy the effects of the violation found, the authorities should provide a procedure allowing the first applicant the possibility to request an independent and impartial tribunal to consider whether the forfeiture of her parental authority is justified, whilst noting that nothing in the judgment should be seen as expressing a view on what the outcome of such an assessment should be. In respect of the lack of access to a court for persons who have been affected by a final care order, it recommended that the Maltese authorities take the necessary general measures to ensure the effective possibility of such access to a court.

Status of execution: An action plan was submitted on 13 February 2013 (see DH-DD(2013)152E).

Individual measures: It appears from the Maltese authorities’ Action plan that the measures which would permit a remedy indicated by the Court, under Article 46, are linked to the adoption of the general measures.

However, in relation to the individual situation of the applicants, the authorities have closely followed the changes in circumstances that might influence the care order, which remains in force. In particular, the mother and children have been living together since July 2012 and benefit from support and regular monitoring by social services.

General measures: In response to the Court’s indications under Article 46, the authorities have prepared two draft laws (appended to the action plan) aimed at allowing persons affected by a decision on the forfeiture of their parental rights, or a final care order to have access to a court to challenge those decisions. The authorities specify that when Parliament re-opens following the general elections in Malta on 9 March, the two pieces of legislation will be recommended to be fast-tracked, with a view to their adoption by the end of the year.

Application

Case

Judgment of

Final on

64791/10

M.D. AND OTHERS

17/07/2012

17/10/2012

1164th meeting – Notes

Although not required by the European Court’s judgment, steps were rapidly taken in order to take account of the change in circumstances in the applicants’ situation, and they are currently living together.

It can also be noted that the draft legislation intended to respond to the Court’s indication under Article 46 on the question of access to court for the first applicant, appears to provide the possibility for individuals affected by the automatic forfeiture of parental authority (like the first applicant) to apply directly to a court to review that forfeiture.

The other piece of draft legislation appears to provide for individuals affected by a final care order to request a court to review that order. But, they must initiate this process by means of a registered letter sent to the Director of the Department of Social Welfare (the body which recommended the care order) rather than with the court directly. The swift production of the draft laws intended to respond to the Court’s indications and the commitment of the authorities to recommend the legislation to be fast-tracked deserves to be noted. However, clarification would be welcome on why this option was chosen instead of direct access to the court by the individual concerned, so that the status of execution of the case can be fully assessed.

Decisions

The Deputies

1. welcomed the diligence shown by the Maltese authorities in responding rapidly to the judgment of the European Court by preparing two draft laws aimed at putting in place a mechanism to provide access to a court to review the forfeiture of parental rights and imposition of final care orders;

2. noted also that although not required by the judgment, steps were rapidly taken in order to take account of the change in circumstances in the applicants’ situation, and that they currently live together;

3. invited the authorities to clarify bilaterally with the Secretariat the outstanding questions on the mechanism to provide access to court to review final care orders.

POLAND

Application: 17885/04

Judgment final on: 22/01/2010

ORCHOWSKI GROUP v. Poland

Enhanced procedure: complex problem

Reference texts:

Action plan (17/03/2011) (Orchowski and Sikorski cases) DH-DD(2011)627

Action report (12/09/2011) (Orchowski and Sikorski cases) DH-DD(2011)709E

Communication from Office of the Human Rights Defender (Orchowski and Sikorski cases) and reply of the government (16/11/2011) DH-DD(2011)1108E

Communication from the authorities (11/01/2013) DH-DD(2013)88

Decision adopted at the 1120th meeting (September 2011)

Case description: Inhuman and degrading treatment of the applicants due to imprisonment in inadequate conditions, particularly overcrowding (violations of Article 3); aggravated by factors such as the lack of outdoor exercise, lack of privacy, insalubrious conditions; frequent transfers and lack of consideration for vulnerable detainees with medical conditions.

In the case of Mirosław Zieliński the European Court found also a violation of the applicant's right to respect for his correspondence in that two his letters sent to the European Court in 2005 had been marked "censored" (violation of Article 8).

The European Court recalled that imprisonment in inadequate conditions constituted a recurrent problem in Poland. It held that since 2000 overcrowding in Polish prisons and remand centres has revealed a persistent structural dysfunction, qualified as a practice incompatible with the Convention (see §147 of the Sikorski judgment). The Court also observed that the solution of the problem of overcrowding of detention facilities in Poland is indissociably linked to the solution of the excessive length of pre-trial detention, identified in the case Kauczor against Poland (see §150 of the Orchowski judgment).

Status of execution:

Individual measures: the European Court awarded just satisfaction in respect of non-pecuniary damage. Information is awaited on the payment of the just satisfaction in the cases Mirosław Zieliński and Musiałek and Baczyński. The just satisfaction has been paid in the other cases in the group. The applicants are no longer detained in the conditions they complained about due to their release, or placement in other facilities which, according to the authorities are not classified as overcrowded.

General measures:

Last examination of the Committee of Ministers: At its last examination of the case at its September 2011, the Committee made a preliminary assessment of the updated Action report submitted in September 2011 and noted that the report did not appear to include information on the aggravating factors referred to in the European Court’s judgments. The Committee therefore invited the authorities to complete the action report submitted with information on measures taken in relation to the aggravating factors so that the status of execution of the cases could be fully assessed.

Follow-up given to the Committee’s request concerning aggravating factors: Additional information was submitted by the authorities on 11/01/13. This includes some general information on two factors: the frequent transfer of prisoners, and possibilities for prisoners to exercise. No information is provided on the other aggravating factors identified by the Court which include lack of privacy, insalubrious conditions and lack of consideration for vulnerable detainees with medical conditions.

Other measures set out in the action report: The updated Action report details other measures which have already been taken, including:

    - the amendment of the Code of Execution of Criminal Sentences, limiting the possibility of placing a detainee in a cell with personal space below statutory 3m² to only exceptional circumstances and for a specified period of time;

    - the adoption of the Law on electronic surveillance of persons serving a sentence outside penitentiaries and providing a possibility for execution of short-term penalties outside prison facilities;

    - acquiring new places in prison facilities, through investments and renovation;

    - constant monitoring of the density of the prison population by the Ministry of Justice.

The amendment to the code of Execution of Criminal Sentences also introduces a remedy providing a detainee with a possibility for lodging an appeal against a decision of the Prison Administration to reduce his cell space or place him in an overcrowded cell. If such an appeal is successful, the applicant will be moved to a facility that is not classified as overcrowded. Also, following developments in national jurisprudence, prisoners are now able to bring a claim for compensation for periods when they were detained in overcrowded conditions under the relevant provisions of the Civil Code.

The violation of Article 8 of the Convention in Mirosław Zieliński case is being examined in the context of Klamecki against Poland (31583/96) group of cases.

Application

Case

Judgment of

Final on

17885/04

ORCHOWSKI

22/10/2009

22/01/2010

17599/05

SIKORSKI NORBERT

22/10/2009

22/01/2010

18364/06

GRZYWACZEWSKI

31/05/2012

31/08/2012

3390/05

MIROSŁAW ZIELIŃSKI

20/09/2011

20/12/2011

38719/09

WENERSKI No. 2

24/07/2012

24/10/2012

1164th meeting - Notes

The updated action report, submitted to the Committee of Ministers in September 2011 lists various measures introduced in order to tackle the issue of prison overcrowding. In the authorities’ opinion, these measures show progress towards eliminating this negative phenomenon from Polish prison facilities. Indeed, the statistics provided in the action report and in the additional information submitted on 11/01/13 demonstrate a positive trend with regard to the number of available spaces for prisoners. However, it appears that some further information and clarification is needed in order for the Committee to have a full picture of the activities undertaken by the Polish authorities and their impact on the problem of prison overcrowding.

Additional information is needed on the aggravating factors identified by the European Court, in particular those factors not addressed in the latest update provided by the authorities (that is lack of privacy, insalubrious conditions and lack of consideration for vulnerable detainees with medical conditions).

Concerning the introduction of a system of electronic surveillance, the action report indicates that this system was planned to apply nationwide by 01/01/12. Further information on its implementation and impact appears necessary, as this system should now apply nationwide and so have achieved its maximum impact.

Detailed information on structural measures was also provided orally by the authorities during bilateral consultations with the Secretariat in Poland in October 2011, with an assurance that this information would be provided in writing in a future update to the action report. In particular the authorities’ highlighted that no effort would be spared to reach the standard of 4m2 per one prisoner, in line with the recommendations of the Committee for the Prevention of Torture. However, no written update has been submitted in this respect. Accordingly, confirmation in writing remains awaited.

There are also two further elements on which no information has been submitted so far.

First, the European Court indicated in the Orchowski judgment (§150) that the solution of the problem of overcrowding in detention facilities in Poland, is indissociably linked to the solution of the problem of the excessive length of pre-trial detention in Poland. As the Committee at its 1136th meeting (March 2012) (DH) noted with satisfaction the progress achieved by the Polish authorities with respect to solving this problem, resulting in a transfer of the Trzaska group of cases from enhanced to standard procedure, the Committee might wish to invite the authorities to provide information on the impact of the measures taken with regard to the Trzaska group of cases on the problem of overcrowding of prison facilities.

Second, concerning the domestic remedy, the European Court emphasised in its admissibility decisions given in the Łatak (§87) and Łomiski (§78) cases that it is the for the Committee of Ministers to evaluate the new complaint procedure from the point of view of the general measures taken in the implementation of the Orchowski and Sikorski judgments. In order for the Committee to make such an assessment, information is needed on the functioning of this remedy and its impact on the problem of overcrowding.

Decisions

The Deputies

1. noted with satisfaction the range of measures adopted by the Polish authorities and presented in the updated action report, in order to tackle the problem of overcrowding in prisons and remand centres;

2. recalled that additional information on measures taken in relation to the aggravating factors identified by the European Court was necessary to allow the status of execution of these cases to be fully assessed;

3. noted in this respect that additional information was submitted on 11 January 2013 on certain aggravating factors but that information is still needed on measures taken to address the lack of privacy, insalubrious conditions and lack of consideration for vulnerable detainees with medical conditions;

4. considered that in order for the Committee to have a full picture of the status of execution of these judgments, further information is also needed in particular concerning the system of electronic surveillance, the impact of the measures adopted to remedy the excessive length of pre-trial detention, examined in the Trzaska group of cases, as well as the functioning of the domestic remedy;

5. noted further with interest the authorities’ commitment during bilateral contacts related to other measures envisaged or adopted to follow up, beyond the execution the judgments in the cases Orchowski and Sikorski v Poland, their efforts to take into account the recommendations of the Committee for the Prevention of Torture, notably in respect of living space;

6. invited the authorities to provide a consolidated action report as soon as possible including all the outstanding information.

POLAND

Application: 23052/05

Judgment final on: 03/05/2009

KAPRYKOWSKI GROUP v. Poland

Enhanced procedure: Complex problem

Reference texts:

Action plan (17/03/2010) DH-DD(2011)626

Action plan (12/09/2011) DH-DD(2011)710E

Communication from the authorities DH-DD(2013)89

Decision adopted at the 1120th meeting (September 2011)

Case description: These cases concern the inhuman and degrading treatment of the applicants in detention facilities mainly due to a lack of adequate medical care, inadequate detention conditions or insufficient consideration of their state of health by the domestic courts when deciding on detention (violations of Article 3). In the case of Wenerski the European Court also found a violation of the applicant's right to respect for his correspondence in that a letter sent to him by the European Court in 2003 had been opened and marked "censored" (violation of Article 8).

The European Court, mindful of the structural nature of these problems, called upon the Polish authorities in the Musiał judgment under Article 46 to take the necessary legislative and administrative measures to secure appropriate conditions of detention, in particular adequate conditions and medical treatment for prisoners needing special care owing to their state of health (§ 107 of the judgment). It also urged them to put an end to the violation of Article 3 in this case by securing adequate detention conditions for the applicant as soon as possible in an establishment capable of providing him with the necessary psychiatric treatment and constant medical supervision (§108).

Status of execution: Action plan submitted on 17/03/2010; revised action plan submitted on 12/09/11, additional information provided on 11/01/13.

Individual measures: The European court awarded the applicants just satisfaction in respect of non-pecuniary damages which has been paid, except in the case of Musialek and Baczynski, where information is awaited. Mr Wierzbicki died in 2006. The other applicants have been released, with the exception of; Mr Wenerski, who received the necessary surgery in 2004 and Mr Musiał, who, is still serving a prison sentence. On 13 February 2013, the authorities confirmed that Mr Musiał has access to appropriate healthcare services and that his conditions of detention are adequate to his state of health.

General measures: The information submitted by the Polish authorities details a number of legislative and administrative measures implemented and on-going.

Legislative and regulatory measures:

    - The Code of Execution of Criminal Sentences in force from 01/09/1997 provides that a person deprived of liberty shall have access -free of charge- to medical services, medicines and sanitary articles;

    - An ordinance on the provision of medical services to persons deprived of liberty adopted on 23/12/10 by the Minister of Justice defining the scope of medical services offered to detainees;

    - An ordinance on the requirement for therapeutic rooms and facilities in prisons, adopted on 14 July 2012;

Administrative measures:

    - Implementation of a programme to provide treatment to HIV positive prisoners in an equivalent manner to that offered outside prison;

    - Increased expenditure on medicines, medical products and health-care services;

    - Implementation of medical programmes for detainees dependant on drugs or alcohol;

    - increasing numbers of medical staff in prisons;

    - On-going training for medical staff within the penitentiary system, including on questions related to the functioning of penitentiary health-care establishments.

It is also indicated that persons deprived of their liberty have a right to submit complaints, requests and motions to the penitentiary authorities as well as a right to submit complaints to different domestic authorities, including the Patient Rights` Ombudsman, and the Professional Liability Officer at the Supreme and Regional Medical Chambers.

The violation of Article 8 of the Convention in Wenerski case is being examined in the context of Klamecki against Poland (31583/96) group of cases.

Application

Case

Judgment of

Final on

23052/05

KAPRYKOWSKI

03/02/2009

03/05/2009

2627/09

KUPCZAK

25/01/2011

20/06/2011

28300/06

MUSIAŁ SŁAWOMIR

20/01/2009

05/06/2009

32798/02

MUSIALEK AND BACZYNSKI

26/07/2011

26/10/2011

15952/09

ROKOSZ

27/07/2010

27/10/2010

44369/02

WENERSKI

20/01/2009

20/04/2009

48/03

WIERZBICKI ANDRZEJ

19/01/2010

19/04/2010

1164th meeting - Notes

In the light of the information recently provided, no other individual measure appears necessary.

Concerning the general measures, some positive developments can be noted, such as the systematic growth of expenditure on healthcare in the penitentiary system; increasing numbers of medical staff in prisons and on-going training for physicians and nurses within the penitentiary system.

It is also encouraging to note that the Code of Execution for Criminal Sentences provides that a person deprived of liberty shall have access – free of charge - to medical services, medicines and sanitary articles. However, this general provision was already in force when the European Court gave its judgments, so its impact in real terms seems limited.

Another relevant measure is the adoption of the 2010 Ordinance on the provision of medical services to persons deprived of liberty, which defines the scope of medical services provided to detainees and provides that where medical services cannot be provided by the penitentiary health-care establishment they shall, in justified circumstances, be provided by non-penitentiary medical establishments. However, no detailed information is provided on the scope of this measure or on its capacity to resolve the problems identified.

Therefore further information is needed, in order to have a full picture of the measures taken to guarantee access to healthcare services for prisoners and detainees. Information would also be welcome on measures taken or envisaged to address the insufficient consideration of the applicants` state of health by the domestic courts when deciding on detention.

Finally, the information submitted concerning remedies available to detainees is very brief. It should also be noted that these remedies were used by some of the applicants in this group, apparently without success. Consequently, in order to be able to make a full evaluation of the effectiveness of these remedies, the Committee might wish to invite the authorities to provide a more detailed explanation on their functioning and in particular, on how they guarantee –in theory and in practice – that prisoners can access the healthcare services they need.

Decisions

The Deputies

1. noted that in the light of the information recently submitted, according to which Mr Musiał’s detention conditions are compatible with his state of health and he has access to the healthcare he needs, no other individual measure appears necessary;

2. concerning the general measures, noted with interest the positive developments presented in the authorities’ Action plan, in particular the systematic growth of expenditure on healthcare services in prisons, the implementation of medical assistance programmes for detainees dependant on alcohol or drugs, increasing numbers of medical staff in prisons and on-going training for medical personnel within the penitentiary system;

3. noted also the legislative and regulatory measures presented by the authorities but observed that the general guarantee of access to healthcare in the Code of Execution for Criminal Sentences was already in force at the time the Court gave its judgments in this group of cases, and considered that additional and up to-date information is necessary to clarify the scope and real impact of these measures;

4. invited also the Polish authorities to provide more detailed information on the functioning, in theory and in practice, of the remedies available to prisoners and detainees in relation to access to healthcare;

5. strongly encouraged the authorities to continue their efforts to remedy the structural problem revealed by these judgments and invited the authorities to provide a consolidated action plan/report which includes all of the additional information needed for a full evaluation of the status of execution in this group of cases.

PORTUGAL

Application: 34422/97

Judgment final on: 08/09/20000

OLIVEIRA MODESTO AND OTHERS v. Portugal

Enhanced procedure: complex problem

Reference texts:

Interim Resolutions CM/ResDH(2007)108, CM/ResDH(2010)34

Action plan (10/01/2013) DH-DD(2013)56F

Communication from Portugal « Framework of the Civil Enforcement Proceedings within the Portuguese Judicial System – Report drawn up in the scope of the group of cases “Oliveira Modesto”- April 2011» (16/05/2011) DH-DD(2013)57E (statistical data and analysis of the length of the enforcement proceedings)

Decision adopted at the 1078th meeting (March 2010), p. 105

Case description: This group of cases mainly concerns the excessive length of judicial proceedings (violations of Article 6§1). In the Jorge Nina Jorge and others case, the Court also found a violation of the applicants’ right to the peaceful enjoyment of their possessions because of the excessive delay in determining and paying compensation following the nationalisation of a company of which they were shareholders (violation of Article 1 of Protocol No. 1).

Status of execution: On 10/01/2013, the Portuguese authorities submitted an action plan concerning the execution of these judgments (DH-DD(2013)56). It is recalled that the authorities have provided information and statistical data on developments as regards length of proceedings on several occasions in 2009 and 2010 and have regularly submitted information on the individual measures and the payment of the just satisfaction.

Individual measures: The amounts of just satisfaction awarded by the Court were paid to the applicants in all cases. At present, the domestic proceedings are still pending in three civil cases relating to bankruptcy procedure (Oliveira Modesto and others, Sequeira and Domingos Marques Ribeiro Maçarico) and one administrative case (Alves Ferreira). The action plan submitted by the authorities comprises detailed explanations as to the reasons why the domestic proceedings in the Oliveira Modesto and others case to which the Committee referred in its interim resolution adopted in 2010 could not be completed until now. In the Jorge Nina Jorge and others case, given that the Court awarded the applicants pecuniary and non-pecuniary damages for the violation of their rights to the peaceful enjoyment of their possessions, no other individual measure was considered necessary by the Committee of Ministers, apart from the payment of the just satisfaction (see the decision adopted at the 891st meeting (July 2004) (DH) with regard to this case).

General measures:

I. Excessive length of judicial proceedings

The action plan submitted by the authorities refers to a series of measures aimed at reducing the length of judicial proceedings, adopted following the Interim Resolution CM/ResDH(2010)34 of the Committee of Ministers and includes statistical data in this respect.

Reference is made in particular to legislative measures introduced in 2011 and 2012 and to the draft of the New Code of Civil Procedure, which comprises provisions aimed at accelerating the proceedings. The action plan also notes the organisational measures, such as the recruitment of magistrates and the computerisation of the courts, as well as the measures taken or envisaged following the analysis of all pending enforcement proceedings by a working group created in 2011. Measures aimed at raising awareness of the Court’s case-law, such as the activities of training for the magistrates and the publication and the dissemination of the judgments in this group of cases, are also presented. However, the action plan does not include the authorities’ assessment of the impact of the reforms introduced until 2010.

The action plan comprises also statistical data, in particular on the flow of civil, administrative, criminal and enforcement proceedings, as well as on the average length of completed proceedings, between 2007 and 2011. It refers, in addition, to the Report of the Ministry of Justice of April 2011 (DH-DD(2013)57), which comprises statistical information on the flow and the average length of enforcement proceedings before the first instance courts, between 2000 and 2010. This report reveals diverging trends between the enforcement proceedings, which represented at the end of 2010 more than 70% of the total number of pending proceedings and the other judicial proceedings. Thus, for example, the average length of civil proceedings remained stable, while that of enforcement proceedings increased by 20 months. Furthermore, the Report contains explanations regarding the distinctive features of enforcement proceedings and the causes of their length as well as regarding the increase of their number in the current socio-economic context.

It is indicated, in this context, that the impact of the legislative measures in force since 2009 could not be assessed given the short period of time since their implementation (for more details on the reform of the enforcement proceedings, see Interim Resolutions CM/ResDH(2007)108 and CM/ResDH(2010)34). The statistical data submitted are not accompanied by the authorities’ assessment of the impact of the adopted measures and, where appropriate, of the need for further measures.

II. Effective domestic remedies

The issue of the implementation at domestic level of effective remedies against the excessive length of judicial proceedings is examined in the framework of the Martins Castro and Alves Correia de Castro group of cases (judgment of 10/06/2008).

III. Violation of the right to the peaceful enjoyment of possessions

The measures required for execution are examined by the Committee of Ministers in the framework of the Carvalho Acabado group.

Application

Case

Judgment of

Final on

34422/97

OLIVEIRA MODESTO AND OTHERS

(list of cases)

08/06/20000

08/09/20000

1164th meeting - Notes

At the last examination of this group of cases, the Committee noted the legislative reforms introduced and encouraged the Portuguese authorities to ensure appropriate monitoring of these reforms so as to be able to evaluate their effects (see Interim Resolution CM/Res/DH(2010)34). In this respect, it is worth noting that, apart from the indication in the Report of the Ministry of Justice of April 2011 that the impact of the 2009 reform on the enforcement proceedings could not be assessed yet, the action plan submitted by the authorities comprises no assessment of the other reforms introduced before 2010.

Therefore, it appears necessary that the authorities present to the Committee their assessment of the impact of all the legislative measures adopted to date and, where appropriate, of the need for supplementary measures, accompanied by an indicative timetable for their adoption.

Regarding, in particular, the enforcement proceedings, the action plan indicates that the authorities envisage the adoption of a series of temporary and extraordinary measures aimed at reducing their length. It would be useful to have further information on the nature and contents of these measures as well as an indicative timetable for their implementation.

The action plan refers, without further detail, to the competitions for recruiting new magistrates and the computerisation of the courts. Clarifications appear necessary in this respect, including the authorities’ assessment of the effects of these measures. It is worth recalling in this respect that in interim resolution CM/Res/DH(2010)34, the Portuguese authorities were invited to present to the Committee their assessment of the similar measures adopted between 2003 and 2008.

With regard to the statistical data comprised in the action plan, it is to be noted that they are not accompanied by the authorities’ analysis. As to the Report of April 2011, this document is based on partial data. Therefore, the authorities should interpret the statistical data included in the action plan, which would allow them to draw conclusions on the impact of the implemented measures, as well as on the need for further measures.

As concerns the individual measures, supplementary information on the measures taken by the authorities to accelerate the proceedings still pending at domestic level with a view to bringing them to an end is needed.

Decisions

The Deputies

1. recalled that the violations found by the Court due to excessive length of judicial proceedings in Portugal reveal structural problems in the administration of justice at the time of the relevant facts;

2. noted the legislative measures and the other measures recently adopted or in the process of being adopted, presented in the action plan of 10 January 2013; insisted, in this context, on their call upon the authorities in the two interim resolutions adopted in this group of cases (CM/ResDH(2007)108 and CM/ResDH(2010)34), to present to the Committee an assessment of the impact in practice of the measures adopted before 2010 and invited the authorities to present also an assessment of the more recent measures, as soon as possible;

3. invited the authorities also to present to the Committee an analysis of the statistical data comprised in the action plan and, where appropriate, of the need to adopt further measures aimed at accelerating the judicial proceedings, accompanied by an indicative timetable for their adoption;

4. decided to resume consideration of this group of cases at one of their forthcoming DH meetings, in the light of supplementary information to be submitted by the authorities on the points indicated above, as well as on the measures envisaged by the authorities in their action plan with a view to reducing the length of enforcement proceedings and on the individual measures.

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 (17/02/2011)

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 (general measures) (25/04/2012) DH-DD(2012)424F

Communication from Romania: translation into English of the draft law aimed at executing the Maria Atanasiu and others pilot judgment (15/05/2012) DH-DD(2012)505E

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

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

Communication from Romania (04/03/2013) DH-DD(2013)237F

Communication from 5 NGOs and reply from Romania (27/04/2012) DH-DD(2012)443F

Communication from several NGOs and reply from Romania (29/11/2012) DH-DD(2012)1128

Communication from a NGO and reply from Romania (05/02/2013) DH-DD(2013)97

Decision adopted at the 1157th meeting (December 2012)

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.

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 1144th meeting (June 2012). 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.

In October 2012, the Romanian authorities indicated that the interministerial group was improving the draft law, taking into account the observations comprised in the memorandum of the Secretariat. According to a revised calendar, the draft law was to be completed by 15 December 2012 and then it was to be open for public discussion until 16 January 2013. Its adoption by the Parliament followed by its promulgation were scheduled to take place between 17 January and April 2013.

In addition, the authorities had started to take organisational measures to facilitate the collection of data on the files that were pending at local and central levels. These measures concerned in particular the identification of files, as well as the swift processing of compensation claims.

At its 1157th meeting (December 2012) , the Committee underlined the need for the Romanian authorities to comply with the revised calendar for the completion and the adoption of the draft law and invited them to present to the Committee the final version of this draft law and the justifications of the measures it contains, as soon as possible. As regards the current state of the restitution and compensation process, the Committee noted, with regret, that the authorities were unable to present it comprehensive consolidated data. Therefore, the Committee reiterated its invitation to the Romanian authorities to provide it with these data without delay.

At a bilateral meeting with the Secretariat in February 2013, the Romanian delegation indicated that its authorities are determined to finalise the draft law as soon as possible and to adopt it within the new time-limit set by the Court for the execution of the pilot judgment.

With regard to the current state of the on-going reparation process, according to the Romanian authorities’ assessment, a global sum of approximately 8.4 billion euros remains to be paid.

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 new time-limit set by the Court for the execution of the pilot judgment Maria Atanasiu and others expires on 12 April 2013;

3. took note of the Romanian authorities’ commitment to finalise the ongoing legislative process within this new time-limit and urged them to present to the Committee the final version of the draft law on the reform of the compensation mechanism, as well as the justifications of the measures it contains, before the end of March 2013;

4. in this context, strongly invited the Romanian authorities to remain in close co-operation with the Execution Department on the questions that the draft law might raise;

5. noted that, according to an assessment made by the Romanian authorities, the global sum that remains to be paid as compensation for the nationalised properties amounts to approximately 8.4 billion euros; encouraged the authorities to continue their efforts to complete without delay the transmission to the Committee of comprehensive consolidated data on the current state of the ongoing restitution and compensation process;

6. decided to continue the examination of the issues raised in this group of cases at the latest at their 1172nd meeting (June 2013) (DH).

ROMANIA

Application: 46430/99

Judgment final on: 05/01/2005

ANGHELESCU BARBU No. 1 v. Romania

Enhanced procedure: Complex problem

Reference texts:

Information document CM/Inf/DH(2011)25rev,

Information document CM/Inf/DH(2013)8

Action plan (09/01/2013) DH-DD(2013)35E

Decision adopted at the 1115th meeting (June 2011)

Case description: This group of cases concerns:

- the ill-treatment inflicted on the applicants while they were under the responsibility of law enforcement officers, amounting to inhuman and degrading treatment or torture, which caused the victim's death in the case of Carabulea (substantive violations of Articles 2 and 3);

- the ineffectiveness of the investigations into the allegations of ill-treatment on account of their length, the hierarchical or institutional bonds existing between the state officials in charge of the investigations and the accused; shortcomings in the handling of evidence; deficiencies in the medical examinations conducted on the applicants and/or the prosecutors’ non-compliance with the courts’ instructions on the conduct of the investigation (procedural violations of Article 2 and 3);

- the lack of an effective remedy in domestic law allowing the applicants to claim damages, due to the absence of an effective criminal investigation (violations of Article 13);

- the racially-motivated ill-treatment of an applicant of Roma origin and/or the authorities' failure to investigate possible racial motives in the ill-treatment (violations of Article 14 taken in conjunction with Article 3 and Article 13);

- several other issues related to the length and fairness of civil and criminal proceedings, the protection of one of the applicants' home and the right to individual application (violations of Articles 6§1, 8 and 34).

The death and the ill-treatment in these cases occurred between 1995 and 2005 and the related investigations were carried out between 1995 and 2010.

Status of execution: On 9 January 2013, the Romanian authorities submitted an action plan for the execution of these judgments (DH-DD(2013)35).

Individual measures: the authorities indicated that in five cases, the time-bar on the criminal liability of the persons involved prevents the reopening of the criminal investigations. In the case of Carabulea, investigations were reopened into the death of the applicant’s brother while in police custody. In the case of Bursuc, following new investigations, the civil prosecutor’s office decided not to prosecute the police officers concerned. In the case of Ianoş, the applicant indicated that his request for reopening of the criminal proceedings which had resulted in the acquittal of the special intervention officer involved upon an extraordinary appeal, was dismissed by the High Court of Cassation and Justice in March 2012. Information is still needed in the other cases of this group as regards the assessment – by the relevant authorities – of the possibility to reopen the investigations into the ill-treatments alleged by the applicants.

General measures: the action plan presents a number of measures adopted by the authorities since 2002 for the execution of these judgments. They essentially concern:

- the fundamental safeguards against ill-treatment: as a result of legislative and regulatory measures adopted between 2003 and 2006, the domestic law secures to the persons detained in police detention facilities the right to have access to a lawyer and to a medical doctor and the right to inform a third party of their choice of their detention. These safeguards are only recognised to persons formally remanded in police custody and in pre-trial detention. As regards the access to a medical doctor, Order No. 988 of 21 October 2005 of the Minister for Administration and Home Affairs on the organisation and operation of police detention facilities recognises to prisoners the right to request an examination of a doctor of their choice, in addition to the examinations that must be conducted by the doctors practising in such facilities. The Order moreover consecrates the mandatory and confidential character of the medical examination upon remand in custody/pre-trial detention and of the periodic medical visits, the obligation on the medical staff to inform the prosecutor when signs of violence are found on the prisoners.

- forensic examination of prisoners: under the above-mentioned Order, the prisoners who present traumatic injuries have the right to request such an examination; the rules adopted for the implementation of the Order, however, subject the prisoner’s request to the authorisation of the head of the detention facility, upon an initial verification of the circumstances in which the violence was inflicted.

- the in-service training of law enforcement officers: themes related to the protection of human rights have been included since 2006 in the curricula for the initial and continuing in-service training of law enforcement officers. Training on prevention of torture and of ill-treatments have been organised since 2010 by the Institute of Studies for Public Order. The Training and development centre for law enforcement officers in Slatina organised training activities in order to ensure a correct practical approach during police operations as concerns the authorised use of force and the conduct of interrogations.

- the conduct of criminal investigations and effectiveness of remedies: as a result of the demilitarisation of the Romanian police in 2002, the criminal cases involving law enforcement officers fall within the province of civil prosecutors and courts. Under the Code of Criminal Procedure (“the CCP”), the investigations into acts prohibited by Articles 2 and 3 which involve law enforcement officers are the province solely of the prosecutor. Special rules enacted in 2009 on criminal investigations against staff within the Ministry for Administration and Home Affaires provide, however, that such investigations are carried out by prosecutors and by officers of the judicial police assigned to the supervisory structures of this Ministry and its subordinated departments. The authorities also indicated that since 2006, the CPP expressly provides that the prosecutors are bound to observe the instructions given by the courts on the conduct of the investigations. As regards the impact of these measures, statistical data on the investigations pending before the prosecutor’s offices were appended to the action plan. Based on a slight increase, since 2007, in the number of law enforcement officers committed to trial on charges of abusive conduct, the authorities conclude that the allegations of ill-treatment by State agents henceforth trigger a firm response from the relevant authorities.

- the prevention of racially-motivated ill-treatment and effectiveness of investigations into such incidents: Law No. 278/2006 amending the Criminal Code introduced the racially/ethnic motivation as a statutory aggravating factor, which carries out an obligation for the investigative authorities to verify on their own motion its incidence in a given case. The draft new Criminal Code provides for an aggravating factor of a similar scope. Measures were moreover adopted to encourage the recruitment of officers of Roma origin within the ranks of the Romanian Police, to improve the in-service training of law enforcement officers in the field of minorities’ rights and to reinforce cooperation between the Romanian Police and non-governmental organisation involved in the protection of the Roma minority.

The action plan moreover announces that the adoption of a draft law aiming at putting in place a national preventive mechanism is in process. Indications on the manner in which the monitoring of the impact of the measures adopted for the execution of these judgments is currently ensured at domestic level are still awaited.

The general measures required to remedy the other violations found in some of the cases in this group are or were examined in the groups of cases Stoianova and Nedelcu, Nicolau and Bota (Resolution CM/ResDH(2011)27), and in the cases of Varga (Resolution CM/ResDH(2011)23) and Gagiu.

Application

Case

Judgment of

Final on

46430/99

ANGHELESCU BARBU No. 1

05/10/2004

05/01/2005

49608/08

ARCHIP

27/09/2011

27/12/2011

42066/98

BURSUC

12/10/2004

12/01/2005

45661/99

CARABULEA

13/07/2010

13/10/2010

48254/99

COBZARU

26/07/2007

26/10/2007

6773/02

DAMIAN-BURUEANĂ AND DAMIAN

26/05/2009

26/08/2009

49234/99

DUMITRU POPESCU No. 1

26/04/2007

26/07/2007

25230/03

GEORGESCU

13/05/2008

13/08/2008

4390/03

GHIGA CHIUJDEA

05/10/2010

05/01/2011

64536/01

IAMBOR No. 1

24/06/2008

24/09/2008

8258/05

IANOS

12/07/2011

12/10/2011

14526/03

LUPAŞCU

04/11/2008

04/02/2009

43247/02

MELINTE

09/11/2006

09/02/2007

10778/02

NIŢĂ

04/11/2008

06/04/2009

71090/01

OLTEANU

14/04/2009

14/07/2009

24857/03

ROSCA ANTON CATALIN

15/02/2011

15/05/2011

37554/06

ROSIORU

10/01/2012

10/04/2012

37971/02

RUPA No. 2

19/07/2011

19/10/2011

41775/06

ŞERCĂU

05/06/2012

05/09/2012

11014/05

SERBAN

10/01/2012

10/04/2012

42722/02

STOICA

04/03/2008

04/06/2008

1164th meeting – Notes

Information document CM/Inf/DH(2013)8 contains a detailed presentation of the information provided in the action plan. This document also identifies the outstanding issues as regards the individual measures and contains an assessment of the information provided on the general measures. Its salient points can be summarised as follows:

As regards the individual measures, the analysis of the information provided by the authorities in the action plan and by the applicant in the case of Ianoş reveals a number of issues that require clarification. Furthermore, the assessment from the relevant authorities of the possibility to reopen the investigations in the other cases of this group is still awaited. Once all the necessary information is obtained, the Committee will be able to make a thorough assessment on the issue of the individual measures in all these cases.

With respect to the general measures, in response to these judgments, the Romanian authorities adopted a series of statutory, regulatory and practical measures.

The analysis of the adopted measures and of the information available on their practical impact shows however that deficiencies continue to affect the prevention of the acts contrary to Article 2 and 3 perpetrated while a person is under the control of law enforcement officers, the investigations conducted into such incidents and, as a consequence, the effectiveness of the remedies available in domestic law to claim damages.

With regard to prevention, it should be noted that in Romanian law, the fundamental safeguards against ill-treatment are not recognised from the very outset of the deprivation of liberty, that is from the moment when a person is deprived of his/her liberty to come in and walk out while they are under the control of law enforcement officers.

Issues are also to be noted in the implementation the regulatory provisions on the medical examination of prisoners: non-observance of the confidentiality of the medical examinations and medical files of the prisoners; incomplete medical examinations and information included in the medical charts and non-compliance with the obligation on the medical doctors to report to the relevant judicial authorities the signs of violence and aggression possibly observed. Moreover, the regulatory provisions on the forensic examination of persons detained in police detention facilities who present traumatic injuries appear to delay such examination and to leave its authorisation at the discretion of an authority which lacks the required operational independence (the head of the detention facility).

Having regard to the available information on the incidence of ill-treatment by law enforcement services, the awareness-raising and training measures taken do not appear to have been capable of completely eradicating acts contrary to Articles 2 and 3. Additional measures, in the context of a policy of “zero-tolerance” of such acts, appear therefore necessary in respect of all law enforcement services (including the special intervention groups whose actions were called into question in the cases of Roşioru and Ianoş).

As regards the effectiveness of criminal investigations, the analysis of recent judgments of the European Court and of the full statistical data provided by the authorities shows that progress still remains to be made. Indeed, no conviction for acts prohibited by Articles 2 and 3 was reported during the reference period (2003 – 2012) and problems persist as regards prosecutors’ compliance with courts’ instructions on the conduct of the investigation.

In this connection, it would be important for the authorities to:

    - clarify the contradiction between the CCP which provides for the exclusive competence of the prosecutor to conduct investigations into acts contrary to Articles 2 and 3 perpetrated by law enforcement officers, and the regulatory provisions adopted in 2009, which provide that judicial police officers take part in such investigations. If the latter’s participation in the investigations is maintained, their status should offer sufficient safeguards for their independence from the law enforcement officers concerned by the investigations;

    - determine if the procedural provisions in force enable the judges and the prosecutors to open investigations on their own motion when they become aware of allegations or indications of ill-treatment;

    - determine the measures that might be necessary to remedy the issue of excessive length of such investigations;

    - define supplementary measures to ensure the prosecutors’ compliance with the instructions given by the courts on the conduct of the investigation, as the law requires.

It should be moreover noted that the authorities did not provide information on the rules which apply to the disciplinary investigations concerning law enforcement officers. It would be however important that they examine these rules and assess their effectiveness in practice, including with respect to the provisional measures that can be taken against the officers concerned.

As regards the measures adopted to prevent and repress racist incidents, the assessment of the authorities on their practical impact is awaited.

The monitoring at national level of the impact of the measures adopted also leaves questions unanswered. In particular, it would be important to determine if this monitoring is currently ensured at the level of the authorities concerned by the execution of these judgments and, if so, to obtain information on the manner it operates.

Having examined Information document CM/Inf/DH(2013)8, the Romanian authorities announced, on 13 February 2013, that in response to the outstanding issues identified in this document, they are in the process of defining additional steps for the execution of these judgments.

Decisions

The Deputies

1. took note of the action plan provided by the Romanian authorities in this group of cases on 9 January 2013 and of its assessment made in Information document CM/Inf/DH(2013)8, prepared by the Secretariat;

2. noted, as regards the individual measures, that information and clarifications are awaited in a number of cases (for more details see Information document CM/Inf/DH(2013)8);

3. noted with satisfaction that the Romanian authorities have indicated that they were considering the adoption of additional general measures for the execution of these judgments, having regard to the above-mentioned document;

4. underlined, in this respect, the need for systematic action by all the authorities concerned, accompanied by appropriate monitoring of the impact of the measures taken for the execution of these judgments, in line with a policy of “zero-tolerance” of acts contrary to Articles 2 and 3 of the Convention;

5. decided to declassify Information document CM/Inf/DH(2013)8 and to resume consideration of this group of cases in the light of the information awaited from the Romanian authorities on the outstanding questions identified in this document and on the additional measures defined for the execution of these judgments.

RUSSIAN FEDERATION

Application: 38411/02

Judgment final on: 30/01/2008

GARABAYEV GROUP v. the Russian Federation

Enhanced procedure: complex problem

Reference texts:

1. Information from the Russian authorities.

Action plan concerning the Gaforov case (27/09/2011) DH-DD(2011)798E

Communication concerning the Gaforov case (03/02/2012) DH-DD(2012)145E

Action plan concerning the Klein case (09/03/2011) DH-DD(2011)601

Communication concerning the Klein case (29/06/2011) DH-DD(2011)584E

Action plan concerning the Khaydarov case (09/03/2011) DH-DD(2011)609

Action plan concerning the Khodzhayev case (09/03/2011) DH-DD(2011)623

Action plan concerning the Sultanov case (13/09/2011) DH-DD(2011)739E

Communications concerning the Yuldashev case (08/04/2011) DH-DD(2011)638E, (03/02/2012)

DH-DD(2012)143

Communication concerning the Elmuratov case (15/05/2012) DH-DD(2012)691E

Action plan concerning the Iskandarov case (22/12/2011) DH-DD(2012)103

Communications concerning the Iskandarov case (30/12/2011) DH-DD(2012)94, (29/03/2012)

DH-DD(2012)390E

Communication concerning the Konontsev case (03/02/2012) DH-DD(2012)142

Communications concerning the Karimov case (03/02/2012) DH-DD(2012)144, (02/03/2012)

DH-DD(2012)306E

Communication concerning the Abdulazhon Isakov case (03/02/2012) DH-DD(2012)146

Communication concerning the Kolesnik case (03/02/2012) DH-DD(2012)147

Communication concerning the Muminov case (29/03/2012) DH-DD(2012)391E

Action plan concerning the Garabayev group (09/02/2012) DH-DD(2012)152E

Communication concerning the Garabayev group (14/05/2012) DH-DD(2012)489E

Additional action plan concerning the Garabayev group (03/09/2012) DH-DD(2012)755Erev

Communication from the Russian authorities (01/02/2013) DH-DD(2013)93

Communication concerning the Yakubov case (18/02/2013) DH-DD(2013)209E

Communication concerning the Ergashev case (20/02/2013) DH-DD(2013)210E

2. Communications from the applicants’ representatives.

Communication from the applicant's representative in the Sultanov case (02/08/2011) DH-DD(2011)624

Communication from the applicant's representative in the Iskandarov case (14/12/2011) DH-DD(2012)24

Communication from an NGO (Garabayev group) (15/12/2011) DH-DD(2012)158E

Joint communication from NGOs and lawyers(Garabayev group) (17/04/2012) DH-DD(2012)422E

Communication from NGOs (19/02/2013) DH-DD(2013)218E

Letter from the Registry (Latipov case) (18/05/2012) DH-DD(2012)538E

Letter from the Registry (Savriddin Dzhurayev case) (26/01/2012) DD(2012)214E

Letter from the Registry (Latipov) (09/11/2012) DH-DD(2012)1046E

Letter from the Registry (Kasymakhunov No. 2) (24/01/2013) DH-DD(2013)75E

Decision adopted at the 1136th meeting (March 2012)

Decision adopted at the 1144th meeting (June 2012)

Decision adopted at the 1150th meeting (September 2012

Decision adopted at the 1157th meeting (December 2012)

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).

The Abdulkhakov case also concerns the applicant’s illegal transfer to Tajikistan (while his extradition was sought by Uzbekistan) and notwithstanding an interim measure indicated by the Court under Rule 39 on account of a serious risk of ill-treatment which the applicant would have faced if extradited to Uzbekistan. In addition to violations similar to those found in other cases of this group (violations of Articles 5§1 and 5§4), the Court found that there would be a violation of Article 3 in the event of the applicant’s extradition to Uzbekistan, and a violation of Article 3 of the Convention on account of the applicant’s transfer by the Russian authorities to Tajikistan. Finally, the Court found a violation of Article 34 on account of the Russian authorities’ failure to comply with an interim measure indicated by the Court.

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

As regards the Abdulkhakov case, it results from the Court’s judgment that the applicant was released by the Tajik authorities on 23 November 2011, following a judicial decision, and that he has been in hiding ever since. As he intends to return to the Russian Federation, he asked the United Nations Refugee Agency to assist him in recovering his passport which had been retained by the Federal Migration Service in Moscow (§ § 63 and 64 of the judgment). Given the findings in paragraph 151 of the judgment, the Committee should be informed of the measures taken, in case the applicant returns to the Russian Federation, to ensure that he does not run the risk of being extradited to Uzbekistan.

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

As regards the Iskandarov case, on 3/09/2012 the Russian authorities submitted a detailed report on the domestic investigation (DH-DD(2012)755). Since then, the Committee has already expressed on several occasions its regrets in view of the lack of tangible results in this investigation.

General measures: As regards the Iskandarov case, the Committee repeatedly expressed concerns in view of the fact that other similar incidents continue to take place after the Iskandarov judgment (see the letters from the Registry of the Court DD(2012)214 and DH-DD(2013)75 and a NGOs’ submission DH-DD(2012)422). Although some measures were taken by the Russian authorities (the Committee’s decisions had been widely disseminated to all authorities concerned, this dissemination was accompanied by instructions indicating that any attempt to forcibly remove from the Russian territory persons in favour of whom the court has indicated an interim measure should be prevented), they were not able to prevent another similar incident (see the letter from the Registry of the Court DH-DD(2012)1046). In these circumstances, the Committee, at its 1157th DH meeting, 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.

On 29/01/2013, the Committee was informed by the Court that a new incident of this kind has been reported in respect of another applicant whose application is pending before the Court and in whose respect the Court applied an interim measure under Rule 39 (see DH-DD(2013)75).

On 01/02/2013, the Russian authorities provided information on the execution of this group of cases (DH-DD(2013)93) indicating that the up-dated list of persons in favour of whom the Court has indicated an interim measure was disseminated to all competent authorities. This dissemination should be done on a regular basis. The Committee’s last decision was also circulated to all authorities concerned.

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). It was notably expected that the Ministry of Justice finalise before the end of 2012 a draft law aimed at bringing the current legislation in line with the Convention requirements. The Committee will assess the progress of this reform at one of its forthcoming meetings.

Application

Case

Judgment of

Final on

38411/02

GARABAYEV (list of cases)

07/06/2007

30/01/2008

1164th meeting – Notes

Since the Iskandarov judgment, seven other applicants whose applications are pending before the Court and who were subject to an interim measure under Rule 39, have disappeared. Most of them have subsequently reappeared in detention in Tajikistan. As regards the two last incidents reported by the Court, the applicants’ whereabouts remain unknown.

This situation has been qualified by the President of the Court and by the Committee as “worrying and unprecedented”. However, no adequate measure to address this situation has been taken. Thus, at their last examination of these questions (December 2012), the Deputies reiterated their regret at the lack of tangible progress in internal investigations relating to the abduction of Mr. Iskandarov as well as to the subsequent similar incidents.

In June and September 2012, the Russian authorities indicated that in view of this situation, the Committee of Ministers’ decisions were circulated to all competent authorities, along with instructions inviting them to prevent any attempt of forcible removal of persons in favor of whom the Court has indicated an interim measure (DH-DD(2012)489 and DH-DD(2012)755rev). Despite these measures, other incidents had however been reported since their adoption (see notably the letter of the Registry of the Court of 9 November 2012 (DH-DD(2012)1046).

The Deputies have, accordingly, called upon the Russian authorities to adopt, without further delay, 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 to ensure that all such incidents are effectively investigated in strict compliance with the Convention obligations of the Russian Federation. Despite the Committee’s call, a new incident was reported by the Registry of the Court on 24 January 2013 (DH-DD(2013)76).

In their most recent communication (DH-DD(2013)93), the Russian authorities added that the list of persons in respect of whom an interim measure was indicated by the Court was disseminated to all the authorities, without however specifying the date of this dissemination. In addition, they indicated that the last decision of the Committee was also circulated to all relevant authorities.

These measures could prevent the removal, by the authorities, of persons in favor of whom the Court indicated an interim measure (see, for example, the judgment in the case of Zokhidov of 5 February 2013, not yet final). However, the question of their relevance remains in situations such as those highlighted in the cases of Iskandarov and Abdulkhakov, in which the authorities do not consider that they have any responsibility or involvement in the applicants’ disappearances and transfer.

Finally, the issue of investigations into incidents of this type remains open. Indeed, the Committee is still expecting information on the results of these investigations.

Furthermore, the importance the Committee has always attached to the respect of the right of individual petition and protection against any interference, which it deemed to be "vital to the effectiveness of the system of protection of human rights established by the Convention ", should be recalled (see Resolution CM/Res(2010)25). The Committee deduced from this essential principle the positive obligation of the States to protect the applicants or persons who have demonstrated their intention to lodge a complaint before the Court, and to investigate properly all cases of allegations of interference into that right.

It is also recalled that the Deputies already noted in December that the lack of appropriate response from the authorities could raise a more general question on the compatibility of this situation with the obligations of the Russian Federation under the Convention.

Decisions

The Deputies

1. took note of the Russian authorities’ position according to which the measures taken so far can prevent further abductions and forced transfers of persons in whose respect the Court indicated an interim measure under Rule 39 of its Rules of Procedure;

2. noted however with serious concern that at present several complaints of foreign nationals are pending before the Court concerning alleged violations of their rights and the non-observance of interim measures indicated by the Court with regard to their forced transfer from the territory of the Russian Federation;

3. invited the Russian authorities to clarify the relevance of the measures already taken in circumstances similar to those described in the Iskandarov and Abdulkhakov judgments;

4. reiterated their call upon the Russian authorities to adopt without further delay the necessary measures to put an end to such incidents by taking further special protective measures in respect of the applicants and a set of measures to ensure rapid and effective investigations into disappearances and forced transfers, and to inform the Committee of Ministers accordingly;

5. in view of the persistence of this alarming situation and having regard to the obligations of the Russian Federation under the Convention, invited the President of the Committee of Ministers to address a letter to his Russian counterpart in order to draw his attention to the serious concern of the Committee of Ministers as well as its repeated calls to adopt the above-mentioned measures;

6. decided to resume consideration of these questions at the latest at their 1179th meeting (September 2013) (DH) however agreeing, in the event that a new, similar incident is brought to the Committee’s attention, to return to this issue at their first meeting following notification of such an incident.

RUSSIAN FEDERATION

Application: 4916/07

Judgment final on: 11/04/2011

ALEKSEYEV v. the Russian Federation

Enhanced procedure: complex problem

Reference texts:

Communication from the Russian Federation (13/10/2011) DH-DD(2011)842

Communication from the Russian Federation (24/08/2012) DH-DD(2012)754E

Communication from the Russian Federation (25/01/2013) DH-DD(2013)67E

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

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

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

Communication from a NGO (ICJ) (15/02/2013) DH-DD(2013)193

Communication from a NGO (ILGA-Europe) (15/02/2013) DH-DD(2013)194

Communication from a NGO (NWAC and GayRussia.ru Project) (20/02/2013) DH-DD(2013)229

Decision adopted at the 1144th meeting (June 2012)

Decision adopted at the 1150th meeting (September 2012)

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

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

Status of execution:

Individual measures: Since the delivery of the Court’s judgment, no Gay Pride parade has been be organised in Moscow by the applicant. According to the authorities, this situation was due to the applicant’s failure to agree with the Moscow authorities on another day and time for the public events planned, his initial proposals in this respect having been rejected by the authorities for reasons relating to the safety of the participants. The Moscow authorities’ decisions were subsequently confirmed by the domestic courts (for more details, see DH-DD(2012)754). The Committee however considered that the information provided did not allow it to satisfy itself that these decisions were based on a thorough and objective assessment of the situation as required by the Court’s judgment.

General measures: In their submissions (DH-DD(2011)842 and DH-DD(2012)754), the Russian authorities considered that the domestic legislation and practice are in compliance with the Convention requirements and that no further measures, beyond dissemination and publication of the judgment, are necessary. They provided statistics and examples of domestic courts’ case-law to support their conclusion.

After having assessed these statistics and examples, the Committee noted that out of the total number of notifications concerning similar events, only a very limited number of such events could effectively take place. The Committee further observed that this situation calls for further general measures, in particular those regarding training and awareness-raising of the authorities in charge of handling the notifications of public events. As regards domestic remedies, the Committee considered that the general remedy allowing the challenge of actions or omissions of public authorities before the court may not provide adequate redress in all circumstances as required by the Convention and consequently invited the Russian authorities to adopt the necessary measures, through legislative action if need be.

As a result of this examination, the Committee invited the Russian authorities to submit a comprehensive action plan on the execution of this case.

On 25/01/2013, the authorities submitted new information on the execution of this case (DH-DD(2013)67), it is currently under assessment. Numerous communications from NGOs have also been received.

Application

Case

Judgment of

Final on

4916/07

ALEKSEYEV

21/10/2010

11/04/2011

1164th meeting – Notes

The last examination by the Committee of the issues raised by the present case took place in September 2012 (at the 1150th meeting, DH), when the Committee invited the Russian authorities to provide a comprehensive action plan. The Russian authorities provided information only on 25 January 2013 (DH-DD(2013)67), i.e. at a very late date. As a result, the information is still under assessment. It is therefore suggested that the debate focuses, for the time being, on the most urgent questions which have an impact on the proper execution of the present judgement.

The Russian authorities have always indicated that the right to freedom of assembly is guaranteed in the Russian Federation without discrimination on grounds of sexual orientation.

In view of the important number of refusals to grant authorisation for public events similar to those envisaged by the applicant, the Committee queried the reasons for this situation. In this context, particular attention has been given to regional laws prohibiting "homosexual propaganda” among minors.

Concerns have already been expressed concerning the vagueness of the terms used by such laws, giving rise to their arbitrary application. For instance, it remains unclear what type of acts these laws are supposed to punish, the acts which will not already be covered by other provisions, especially criminal provisions. The fact that they are being used to refuse the organisation of public events gives rise to grave concern.

It is true that the Russian authorities have cited examples of domestic case-law as well as the positions of the Constitutional Court and the Supreme Court, which state that public events similar to those envisaged by the applicant do not constitute “homosexual propaganda”.

Other examples suggesting the opposite are cited by NGOs in their submissions. Furthermore and notwithstanding this jurisprudence, the public authorities, whether executive or legislative, continue to qualify in particular the Gay pride marches as “propaganda” expressly targeted by this type of legislation (see the conclusions of a Duma Committee concerning the federal draft law adopted on 25 January in first reading and a communication of a NGO reporting express refusals based on these laws).

It is in this context that the Secretary General of the Council of Europe recently wrote to the President of the State Duma concerning the federal draft law prohibiting the so-called “homosexual propaganda”. In his letter, the Secretary General called upon the Russian State Duma to “demonstrate [its] determination to fully respect the human rights and equal treatment of all individuals in society” by rejecting initiatives which could increase intolerance and prejudices in society at large.

Decisions

The Deputies

1. recalled the assurances given by the Russian authorities according to which the right to freedom of assembly, as provided by Article 11 of the Convention, is guaranteed in Russian law without discrimination on grounds of sexual orientation and called upon the Russian authorities to give direct and practical effect to this right;

2. reiterated in this context their concerns in view of the developments in the law and practice in the Russian Federation, including restrictive practices on the part of the competent local authorities, in particular those of Moscow, and of the adoption of regional laws in an increasing number of regions prohibiting the “promotion of homosexuality” among minors;

3. consequently expressed serious concerns with regard to the current legislative work aimed at introducing prohibition of the "promotion of homosexuality" at federal level and considered that the adoption of such a law could raise serious questions as to the compliance by the Russian Federation with its obligations under Article 46 of the Convention;

4. in the context of this ongoing legislative work, called upon the Russian authorities to give full consideration to the future Venice Commission Opinion “on the issue of the prohibition of so-called propaganda of homosexuality in the light of recent legislation in some Council of Europe member States, including the Republic of Moldova, the Russian Federation and Ukraine” before taking a final stand on these issues.

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

Communication from a NGO (29/11/2012) DH-DD(2013)92

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

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

Communication from the Russian Federation (13/02/2013) DH-DD(2013)153E

Decision adopted at the 1150th meeting

Decision adopted at the 1157th meeting (December 2012)

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 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 two applicants was compensated by the Court by granting just satisfaction.

On 16/11/2012 the Russian authorities provided information on the conditions of detention of the applicants. According to this information, M. Bashirov is no longer in pre-trial detention; he is serving his sentence in a correctional colony. M.Ananyev is still in pre-trial detention; the Russian authorities gave details on the current conditions of his detention (DH-DD(2012)1072). On 21/12/2012 the Secretariat sent a letter to the Russian authorities inviting them to provide further clarifications on the applicant’s current conditions of detention. Additional clarifications in this respect were provided by the Russian authorities in response to this letter on 13/02/2013 (DH-DD(2013)153).

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 of a combination of effective remedies having preventive and compensatory effects (DH-DD(2012)1009). It is expected that the Committee will examine the issue of general measures at its 1172nd meeting (June 2013) (DH) in the light of the assessment to be prepared by the Secretariat and of the progress achieved by the authorities in the setting up of domestic remedies.

Application

Case

Judgment of

Final on

42525/07+

ANANYEV AND OTHERS

10/01/2012

10/04/2012

1164th meeting - Notes

It is recalled that, in accordance with the decision adopted at the 1157th meeting (December 2012) (DH), only the question of individual measures is proposed for examination at the present meeting.

As regards M. Ananyev, it would appear that he was transferred again following the reopening of proceedings in his criminal case to the same pre-trial detention centre in respect of which the Court has found a violation of Article 3 on account of the conditions of detention. According to the information provided, the applicant is detained, together with two other persons, in a cell of 14.5 square meters (with a living space of 12.6 square meters). The lavatory of the cell is completely separated, ensuring full privacy, and the gratings installed on the windows do not prevent access to fresh air and natural light. The applicant has the possibility of one-hour daily outdoor exercise in a space of 4-5 square meters.

The Russian authorities, in their reply of 13 February 2013, gave assurances that the cell occupied by Mr Ananyev would not have more than three inmates and that the equipment of the cell allowed them to move around in it (4.2 square meters per person) unhindered by furniture. They also specified that the device the cell windows are currently equipped with is different from one criticised by the Court and provides access of natural light and fresh air. In particular, they stressed that there are no metal or other devices which block the windows.

As regards outdoor exercise, a courtyard of 14.5 square meters with a bench, protected against the bad weather, was made available to the applicant. He is taken there with two other prisoners to walk.

It appears from the information provided by the Russian authorities that the current detention conditions of Mr. Ananyev differ from those criticized by the Court, in particular with regard to the availability of living space and access to natural light and fresh air.

Given the findings of the Court in paragraphs 150 to 152 of the pilot judgment, the situation with regard to the possibilities of real outdoor exercise certainly leaves room for improvement. However, it would seem that any further improvement in this area is closely linked to the question of general measures to be adopted in respect of the conditions of detention.

Decisions

The Deputies

1. noted the assurances given by the Russian authorities concerning the current detention conditions of Mr Ananyev, in particular with regard to the available living space, access to natural light and fresh air as well as to the equipment of the cell, and that according to the authorities, these conditions are not likely to raise an issue under Article 3 of the Convention;

2. recalled that the issue of general improving of detention conditions is examined by the Committee, notably in light of the action plan submitted by the Russian authorities for the execution of the pilot judgment.

RUSSIAN FEDERATION

Application 39417/07

Judgment final on 27/12/2011

ALIM v. the Russian Federation

Enhanced procedure: urgent individual measures

Reference texts:

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

Communication from the Russian Federation (28/01/2013) DH-DD(2013)72E

Decision adopted at the 1157th meeting (December 2012)

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 an overview of the applicant’s current situation.

At their last meeting, the Deputies expressed concern about this situation and insisted on the necessity 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. They consequently urged the Russian authorities to take appropriate measures and to inform the Committee accordingly.

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

1164th meeting - notes

It is recalled that the decision concerning the applicant’s administrative expulsion was quashed in June 2012 by the Supreme Court following the Court’s judgment in which it found that the execution of this decision would violate Article 8 of the Convention on the ground that the applicant, a Cameroonian national, was father of two minor children of Russian nationality. The Supreme Court, however, did not address the issue of the regularisation of the applicant’s situation.

As a result, the applicant continues to reside unlawfully in the Russian Federation, the regularisation of his status being prevented by certain legal obstacles. The Russian authorities, however, indicated that the applicant does not run the “direct” risk of expulsion (DH-DD(2012)897).

Indeed, Russian law does not provide for a possibility to regularise the status of a person in an irregular situation while the person remaining in the Russian Federation. That person must leave the country in order to start anew the procedure from his country of origin, i.e. to obtain an entry visa and, once arrived on the site, to submit a file with a view to obtaining a residence permit.

This situation was explained to the applicant’s partner, as well as to his representative, during a meeting held on 18 January 2013 by the representatives of the Federal Migration Service. In addition and given the applicant’s particular situation, the Federal Migration Service offered to grant him a special visa to leave the country (otherwise he will be subjected to an automatic penalty preventing him from coming back to the Russian Federation for several years). The Federal Migration Service also offered its assistance to the applicant in all steps necessary to ensure his return to the Russian Federation.

Finally, the same Service gave written guarantees to the applicant that he will be allowed to come back to the Russian Federation and that he will receive a temporary residence permit. The Russian authorities did not, however, give more details as to the nature and the content of these guarantees (see DH-DD(2013)72).

It should be noted that the solution proposed by the Russian authorities today had already been offered to the applicant in the past and examined by the Court. In this respect, the Court noted in its judgments that it was not convinced that this solution would constitute a reasonable opportunity for the applicant to regularise his presence in Russia, having regard to the applicable provisions and procedures of Russian law (see §88 of the judgment).

In addition, the States’ and the Committee's practice, as it had developed so far in similar cases, was to regularise the applicants’ status without requiring them to leave the country in which they were, even if the applicant in question entered the country illegally (see, for example, Osman against Denmark, action report DH-DD(2012)465rev). This was notably done with a direct reference to Article 8 of the Convention (see, for example, Sezen against the Netherlands, case closed by a Resolution CM/ResDH(2010)107). In other cases, the respondent State has even granted a residence permit with retroactive effect to the applicant who had not timely renewed her residence permit but who was the mother of a child born in the Netherlands (see, for example, the case of Rodrigues da Silva and Hoogkamer against the Netherlands, Resolution CM/ResDH(2010)60).

In this context, it is noted that the Russian authorities provided examples of the domestic case-law demonstrating that the domestic courts refuse to order expulsion of persons in an illegal situation if they have family ties with the Russian Federation (DH-DD(2013)91 submitted in the Liu (No. 2) case and DH-DD(2012)897 submitted in the Alim case). It would be useful to receive information on how the regularisation of these persons’ immigration status is ensured following such judicial decisions. If there exists a procedure whereby persons concerned can be regularised without leaving the Russian territory, information would be useful on the conditions under which M. Alim can benefit from this procedure.

Decisions

The Deputies

1. recalled that the decision concerning the applicant’s expulsion was quashed and that the Russian authorities indicated that there is no threat of the applicant’s expulsion from the Russian Federation although he remains in an irregular situation;

2. took note of the solution proposed by the Russian authorities with a view to regularising the applicant’s status which involves him voluntarily leaving Russia, obtaining a Russian entry visa and, on his return, obtaining a residence permit;

3. invited the Russian authorities to explore, in co-operation with the Secretariat, all possible avenues that might allow the applicant to regularise his status without imposing on him an obligation to leave the country and to be separated from his family;

4. noted with interest in this context the existence of case-law demonstrating that the domestic courts refuse to order the expulsion of persons in an irregular situation with family ties in the Russian Federation;

5. invited consequently the Russian authorities to clarify how the regularisation of such persons is effected and, if there exists such a procedure, under what conditions M. Alim could benefit from it;

6. decided to resume examination of the individual measures required by this judgment at the latest at their 1179th meeting (September 2013) (DH).

RUSSIAN FEDERATION

Application 29157/09

Judgment final on 08/03/2012

LIU GROUP v. the Russian Federation

Enhanced procedure: Urgent individual measures+ complex problem

Reference texts

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

Action plan (31/01/2013) DH-DD(2013)91

Decision adopted at the 1157th meeting (December 2012)

Case description: Both cases concern the right to family life of four applicants: the husband, a Chinese national, his wife and their two minor children born in 1996 and 1999 respectively, 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 domestic courts having refused to exercise their review of this situation, the Court found a violation of Article 8.

Following the first judgment of the Court, the applicants lodged an application for the reopening of proceedings which was granted. In the framework of these proceedings, the domestic courts reviewed the documents gathered by the secret services and confirmed that the first applicant was a danger to national security. Following this review, the administration’s refusal to grant to the first applicant a residence permit was maintained. Being in an illegal situation, he was eventually apprehended and brought before the domestic courts, which ordered his expulsion. This decision was executed in November 2009. These two set of proceedings were examined by the Court in its second judgment which found a new violation of Article 8.

The Court first found that the judicial review of the classified data underlying the administration’s assessment that the first applicant constituted a risk to national security was not attended by adequate and sufficient procedural guarantees and that this risk was not convincingly established. The Court further found that the refusal to grant a residence permit and the first applicant’s expulsion were disproportionate because the domestic authorities and courts failed to take into consideration the solidity of his family ties with the Russian Federation.

Status of execution: On 22/10/2012, the Russian authorities presented an action plan/report on the execution of this judgment (DH-DD(2012)999).

During its last examination, the Committee 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 of the Convention.

Individual measures: The father was expelled to China in November 2009 and cannot re-enter the Russian Federation for a period of five years. His wife and his children are Russian and live in the Russian Federation.

At the outset, the Russian authorities indicated that Russian legislation provides for a possibility to request the reopening of proceedings following a judgment of the Court and that no such request has been lodged by the applicants. The decision to grant a residence permit remains however with the Federal migration service.

The Committee indicated in its last decision (December 2012) that it was imperative that the Russian authorities take without delay the necessary measures to eliminate the consequences of the violation for 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. They also indicated that further measures to comply with the judgment are being considered by the authorities.

At its 1157th meeting (December 2012), the Committee invited the Russian authorities to provide an action plan outlining the measures taken and/or envisaged to prevent similar violations.

On 1/02/2013, the Russian authorities provided information on individual measures, and notably on the rules applicable to the reopening of proceedings, as well as further examples of the domestic courts’ practice (see DH-DD(2013)91)

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

1164th meeting – Notes

The examination of the individual measures in the case of Liu No. 2 raises in particular the question of how the authorities can erase the consequences of two sets of proceedings impugned by the Court. The first proceedings concerned the administration's refusal to grant the first applicant a residence permit, which was considered legal by the courts, and the second proceedings concerned removal of the applicant from the Russian territory by a court decision following that refusal. It is recalled that the Court highlighted, as regards the first proceedings, the absence of adequate examination by the courts of the reality of the risk which according to the administration, the father, the first applicant, posed to national security and further the failure, in both proceedings, to balance such a risk, even if established, with the applicants' right to respect for their family life.

According to the information provided by the Russian authorities on the individual measures, Mr Liu, the first applicant, should have requested, following the judgment of the Court, the reopening of the first judicial proceedings relating to the lawfulness of the refusal to grant a residence permit, impugned by the Court (judgment of the Supreme Court of May 2009). Since Mr Liu has not requested the reopening of these proceedings within the three-month deadline under the Code of Civil Procedure, no individual measure would be required. The authorities indicate, however, that Mr Liu can still ask for an extension of the time-limit if he presents valid reasons explaining that it was impossible for him to comply with this deadline.

In this respect, it should be noted that the normal execution measure in this type of cases is not the one advocated by the Russian authorities but a new examination by the immigration authorities of the request for a residence permit, in compliance with the Convention and thus taking full account of the right to respect for family life of the persons concerned. The approach proposed also raises several problems. In particular, it does not seem to offer prospects of success for the applicants, in the absence of adoption of any general measures.

Indeed, nothing in the information provided permits the conclusion that the two structural deficiencies underlying the violation - the lack of adequate procedural safeguards before the courts and the failure to take into account the applicant’s family situation when national security is at stake – were remedied. In this respect, it is noted that the examples of case-law submitted do not concern cases in which national security is at stake and demonstrate no change in the situation. It seems that the position of the Supreme Court, adopted in 2009, according to which in cases involving national security considerations, "the public interest had priority over any private interest" is still valid.

Furthermore, no regulatory or other measures appear to have been taken to address the shortcomings identified by the Court concerning the judicial review, to assess whether a person poses a risk to national security.

In this situation, other ways should be considered, which would allow the rapid balancing of the different interests at stake: on the one hand, any considerations of national security and, on the other hand, the right to respect for family life of the applicants.

In principle, this should be possible in the context of a new application for a residence permit by the first applicant. The only condition for such an application to be considered on the merits seems to be the lifting of the ban on entering the Russian territory imposed by the Code of Administrative Offences. This Code sets no time-limit for filing a request for reopening, which can be done either by the applicants or by the prosecutor. In addition, it appears that this procedure permits a balancing of the various interests concerned in accordance with the requirements of the Convention.

Decisions

The Deputies

1. recalled the necessity to take individual measures to remedy the violation found;

2. invited the authorities to explore, in co-operation with the Secretariat, what could be the most appropriate way to promptly adopt effective individual measures for the execution of the Court’s judgment, taking due account of the family situation of the applicants;

3. decided to resume consideration of these questions at the latest at their 1179th meeting (September 2013) (DH) in the light of the information on individual and general measures.

SERBIA

Application: 31925/08

Judgment final on: 24/09/2012

GRUDIĆ v. Serbia

Enhanced procedure: Complex problem

Reference texts:

Action plan DH-DD(2013)50

Communication from Serbia (11/01/2013) DH-DD(2013)58E

Letter from the Court DH-DD(2013)177

Decision adopted at the 1157th meeting (December 2012)

Case description: The case concerns a violation of the applicants’ right to peaceful enjoyment of their possessions on account of the fact 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, which included their pensions due as of 9 June 1999 and 15 January 2000, respectively, together with statutory interest (§92). On 9 January 2013, the Serbian authorities indicated that the sums in question were paid to the applicants in December 2012.

General measures: In their action plan dated 10 January 2013, the Serbian authorities indicated that a working group was set up in November 2012 to examine the issue of pensions earned in Kosovo*. The authorities intend to issue a notice in order to invite all individuals eligible for resumption of the payment of their pensions earned in Kosovo* so that they will be eligible to apply to the competent local authorities within 60 days. The notice should be widely published until 20 February 2013 at the latest. Following the necessary factual and/or administrative verification of each individual case, the authorities envisage to take a decision on each case until 20 August 2013 at the latest.

On 19 February 2013, the European Court decided to extend the above-mentioned deadline until 24 September 2013 following a request made by the Serbian authorities. However, the Court “emphasised the exceptional character of the extension granted in the present case, and invited the Government to inform the Court of their progress every three months.”

Application

Case

Judgment of

Final on

31925/08

GRUDIĆ

17/04/2012

24/09/2012

1164th meeting – Notes

It appears from the information provided by the Serbian authorities that first steps have been taken in order to identify the individuals who will be entitled to the resumption of payment of pensions and arrears. To this end, the Serbian authorities will issue a notice which will be widely published until 20 February 2013. The Serbian authorities will subsequently proceed to examine each individual application in order to verify who, among the individuals identified, are eligible for the resumption of payment. Once it is verified that an individual is eligible, a decision will be taken in his/her case. It is envisaged that the verification procedure will only be completed by 20 August 2013.

It is recalled that, according to the judgment of the European Court, the Serbian Government must take until 24 March 2013 “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”.

However, it appears that the European Court decided to extend the above-mentioned deadline until 24 September 2013. It therefore appears necessary that the Serbian authorities intensify their efforts with a view to taking all the appropriate measures within this new deadline.

Decisions

The Deputies

1. noted with satisfaction that the Serbian authorities provided in their action plan a calendar for the measures to be taken for the execution of the present judgment and that the action plan also included information on the measures taken for the identification and verification of persons who will be entitled to the resumption of payment of pensions and arrears;

2. noted in this respect that the verification process is expected to be completed until 20 August 2013;

3. given that the European Court decided on 20 February 2013 to extend the deadline for taking of measures until 24 September 2013, encouraged the Serbian authorities to intensify their efforts with a view not only to bringing the verification process to an end but also to taking all the appropriate measures within this new deadline;

4. decided to resume consideration of this case at their 1172nd meeting (June 2013) (DH) on the basis of further information to be provided by the Serbian authorities.

SLOVENIA

Application: 26828/06

Judgment final on: 26/06/2012

KURIC AND OTHERS v. Slovenia

Enhanced procedure: pilot judgment

Reference texts:

Communication from Slovenia (10/10/2012) DH-DD(2012)957E

Action plan (30/01/2013) DH-DD(2013)83

Letter from the Commissioner for Human Rights (29/1/2013) CommDH002(2013)

Decision adopted at the 1150th meeting (September 2012)

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

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

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

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

Status of execution:

Individual measures: Six applicants have already been granted permanent residence permits. However, two applicants (Mr Dabetić and Mrs Ristanović) did not apply for residence permits and, therefore, the European Court declared their cases inadmissible (§292). The European Court considered, however, that the issuing of permanent residence permit did not constitute sufficient redress for the violations found because the applicants were not awarded proper financial redress for the years during which they were in position of vulnerability and legal insecurity (§§401, 412). The Court awarded just satisfaction to the applicants in respect of non-pecuniary damages sustained. It reserved, however, the question of compensation for pecuniary damage having regard to any agreement which might be reached between the Slovenian authorities and the applicants and in light of the individual or general measures that may be taken by the authorities in execution of this judgment. At its 1150th meeting (September 2012), the Committee of Ministers invited the Slovenian authorities to provide information in this respect. In their communication dated 11 October 2012, the Slovenian authorities indicated that the compensation for pecuniary damage sustained by the applicants should be determined within the framework of the compensation scheme to be introduced.

General measures: As indicated by the European Court, the Slovenian authorities should introduce an ad hoc domestic compensation scheme for the “erased” who are still denied compensation for the infringement of their fundamental rights. This compensation scheme should be introduced until 26 June 2013 at the latest. At its 1150th meeting (September 2012), the Committee of Ministers invited the Slovenian authorities to provide, as soon as possible, an action plan and to keep the Committee informed on the developments.

In their action plan of 30 January 2013, the Slovenian authorities indicated that a compensation scheme will be introduced in order to comply with the judgment of the European Court. The compensation scheme aims at awarding compensation to the “erased” on account of the damages suffered as a result of their loss of permanent residence. According to the compensation scheme the “erased” persons will be offered a lump sum compensation.

However, if the person concerned rejects the lump sum compensation, the authorities will seek to reach a friendly settlement on the basis of the circumstances of each case. If no friendly settlement is reached, the person concerned will be entitled to claim damages before domestic courts. The compensation scheme should be introduced either by amending the Legal Status Act or by adopting special regulation.

Application

Case

Judgment of

Final on

26828/06

KURIC AND OTHERS

26/06/2012

Grand Chamber

1164th meeting – Notes

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

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

Statement of the Commissioner for Human Rights: In his statement of 29 January 2013, the Commissioner of Human Rights said that “the “erasure” of thousands of people from the Register of Permanent Residents of Slovenia in 1992 continues to adversely affect the human rights of many ‘erased’ persons. The Slovenian government should step up its efforts and provide adequate reparation to all victims” (the full text of the statement and the reply of the Slovenian authorities can be found in the link above, see reference texts).

Decision adopted by the Committee at its 1150th meeting (September 2012): The Committee of Ministers invited the Slovenian authorities to provide, as soon as possible, an action plan and to keep it informed about the developments. However, the Slovenian authorities provided an action plan on 30 January 2013 i.e. at a date that does not allow a detailed assessment in due time for the present meeting given the complexity of the issues raised and which require an in-depth examination.

It emerges from the action plan that the Slovenian authorities have taken initial steps in order to introduce a compensation scheme to remedy the situation of the “erased” persons. However, there are quite a number of questions that remain outstanding. No detail has been provided on the steps to be taken to determine the amount of the lump sum compensation to be awarded to the “erased” persons. Furthermore, there is no information on how this lump sum will be calculated. It is also not clear when and how the Slovenian authorities will take a decision on whether the compensation scheme will be integrated in special secondary legislation or in amendments to Legal Status Act and, if so, when the latter will be drafted and adopted. Lastly, the action plan did not provide any information on the measures aimed at reintegrating the “erased” into the Slovenian society. It seems that the action plan does not provide a clear roadmap for the execution of this judgment, although the European Court indicated that the compensation scheme should be introduced by 26 June 2013.

Decisions

The Deputies

1. recalled that the European Court in the pilot judgment of 26 June 2012 in the case of Kurić indicated to the Government of Slovenia that it should set up an ad hoc domestic compensation scheme within one year to redress the damages suffered by “erased” persons for the infringement of their fundamental rights;

2. recalled further that, at the 1150th meeting (September 2012) (DH), the Committee of Ministers invited the Slovenian authorities to provide, as soon as possible, an action plan setting out the measures taken and envisaged for the execution of this judgment;

3. regretted that the action plan was only submitted on 30 January 2013 by the Slovenian authorities;

4. bearing in mind that the above-mentioned deadline will expire on 26 June 2013, strongly invited the Slovenian authorities to work in close co-operation with the Secretariat on all outstanding questions, in particular on the steps taken to determine the amount of lump sum compensation to be awarded to “erased” persons, the method of calculation of this compensation, the legal framework that will govern the compensation scheme and how the beneficiaries will be determined;

5. decided to resume consideration of this case at their 1172nd meeting (June 2013) (DH) at the latest.

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 prepared by the Secretariat

- on the issue of property rights of displaced persons CM/Inf/DH(2010)21, CM/Inf/DH(2010)36

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

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

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

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

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

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

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

Booklet of information concerning the rights of enclaved persons (27/02/13) DH-DD(2013)222E

Missing persons (27/02/13) DH-DD(2013)221

Property rights of enclaved persons (27/02/13) DH-DD(2013)220

Information submitted by the Cypriot authorities

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

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

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

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

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

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

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

13 cases of property rights of displaced persons (22/02/2013) DH-DD(2013)202

List of the questions raised during the discussion of the 1157th meeting DH-DD(2012)1161

Communication from Cyprus (04/02/2013) Additional questions DH-DD(2013)124

Communication from a NGO (Organisation of relatives of undeclared prisoners and missing persons of Cyprus) (25/02/13) and reply of the Turkish authorities (04/03/13) DH-DD(2013)234E

Decision adopted at the 1136th meeting (March 2012)

Decision adopted at the 1144th meeting (June 2012)

Decision adopted at the 1157th meeting (December 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 and December 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

For more details see the notes prepared for the 1157th meeting (December 2012).

c) Latest examinations by the Committee of Ministers

At the 1157th meeting (December 2012) (DH), the Committee took note of the synthesis of the information received, prepared by the Secretariat (CM/Inf/DH(2012)37), and 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. These questions have been listed in the document DH-DD(2012)1161, circulated to all delegations on 20/12/2012. The Committee also 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. It decided to resume consideration of these questions at its 1172nd meeting (June 2013) in the light of a synthesis and an updated assessment by the Secretariat.

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 examinations 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.

At their 1157th meeting (December 2012) (DH), the Deputies 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).

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 is 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 1172nd meeting (June 2013) (DH).

Concerning questions regarding the property of enclaved persons

3. took note of the information submitted by the two delegations concerned in response to the decision adopted by the Committee in December 2012, including of the information booklet relating to the property rights of enclaved persons provided by the Turkish authorities;

4. decided to resume consideration of these questions at their 1172nd meeting (June 2013) in the light of an updated assessment to be prepared by the Secretariat on the basis of the information received as of 25 March 2013.

Concerning questions regarding missing persons

5. noted with interest that the Turkish authorities provided substantial information on these questions in writing and during the meeting;

6. recalling the necessity to adopt a proactive approach as regards effective investigations into the fate of persons who are still missing, called on Turkey to continue providing the Committee on Missing Persons in Cyprus (CMP) with all relevant information, and access to all relevant places; in this respect welcomed the permissions granted so far and the assurance of the Turkish authorities that they will continue granting the CMP access to other relevant military zones;

7. as regards identified persons, while underlining once again the urgency to effectively investigate the deaths of these persons, welcomed the additional concrete investigative steps taken by the Turkish authorities and invited them to regularly inform the Committee of the progress made in this respect as well as of any results achieved;

8. on this last point, underlined the crucial importance of investigators having access to forensic data and evidence kept by the CMP; and in addition called upon the Turkish authorities to continue granting them access to the relevant Turkish archives and reports;

9. in respect of the Varnava case, recalled with insistence their request to the Turkish authorities to provide, in the light of the above considerations, information on the individual measures in the cases at issue in this judgment and, in this context, noted with interest the information submitted with regard to the case of Mr. Hadjipanteli; underlined the unconditional obligation to pay the just satisfaction awarded by the Court in this case, urged the Turkish authorities to pay it without further delay and decided to resume consideration of the payment of the just satisfaction in the Varnava case at their 1172nd meeting (June 2013) (DH);

10. agreed to invite the CMP for an exchange of views at one of their forthcoming meetings (DH); a list of questions will be forwarded to the CMP for a better preparation of the meeting;

11. decided to resume consideration of the question of missing persons at the latest at their 1186th meeting (December 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 (25/10/2012) DH-DD(2012)1012

Communication from the applicants’ representative (22/02/2013) DH-DD(2013)201

Decision adopted at the 1144th meeting (June 2012)

Decision adopted at the 1157th meeting (December 2012)

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

The Deputies

Concerning questions regarding the property rights of displaced persons

1. recalled that the Court is 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 1172nd meeting (June 2013) (DH).

Concerning questions regarding the property of enclaved persons

3. took note of the information submitted by the two delegations concerned in response to the decision adopted by the Committee in December 2012, including of the information booklet relating to the property rights of enclaved persons provided by the Turkish authorities;

4. decided to resume consideration of these questions at their 1172nd meeting (June 2013) in the light of an updated assessment to be prepared by the Secretariat on the basis of the information received as of 25 March 2013.

Concerning questions regarding missing persons

5. noted with interest that the Turkish authorities provided substantial information on these questions in writing and during the meeting;

6. recalling the necessity to adopt a proactive approach as regards effective investigations into the fate of persons who are still missing, called on Turkey to continue providing the Committee on Missing Persons in Cyprus (CMP) with all relevant information, and access to all relevant places; in this respect welcomed the permissions granted so far and the assurance of the Turkish authorities that they will continue granting the CMP access to other relevant military zones;

7. as regards identified persons, while underlining once again the urgency to effectively investigate the deaths of these persons, welcomed the additional concrete investigative steps taken by the Turkish authorities and invited them to regularly inform the Committee of the progress made in this respect as well as of any results achieved;

8. on this last point, underlined the crucial importance of investigators having access to forensic data and evidence kept by the CMP; and in addition called upon the Turkish authorities to continue granting them access to the relevant Turkish archives and reports;

9. in respect of the Varnava case, recalled with insistence their request to the Turkish authorities to provide, in the light of the above considerations, information on the individual measures in the cases at issue in this judgment and, in this context, noted with interest the information submitted with regard to the case of Mr. Hadjipanteli; underlined the unconditional obligation to pay the just satisfaction awarded by the Court in this case, urged the Turkish authorities to pay it without further delay and decided to resume consideration of the payment of the just satisfaction in the Varnava case at their 1172nd meeting (June 2013) (DH);

10. agreed to invite the CMP for an exchange of views at one of their forthcoming meetings (DH); a list of questions will be forwarded to the CMP for a better preparation of the meeting;

11. decided to resume consideration of the question of missing persons at the latest at their 1186th meeting (December 2013) (DH).

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 (04/06/2012) DH-DD(2012)547

Communication from the authorities (24/09/2012) DH-DD(2012)851

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

Communication from the authorities (17/01/2013) DH-DD(2013)81

Decision adopted at the 1150th meeting (September 2012)

Decision adopted at the 1157th meeting (December 2012)

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).

The Turkish authorities provided information to the Committee at the 1144th meeting (June 2012) on the content of a 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.

However, according to the submission made by the Turkish authorities on 14 January 2013, it was not possible to bring the “Fourth Package” before Parliament until the end of December 2012. The authorities reiterated the political commitment and determination of the Turkish Government for the adoption of the draft law and noted that, during the Parliamentary deliberations that took place in January 2013, the Minister of Justice explained the content of the draft text to Parliament and called upon the political parties to support its adoption. The authorities noted 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 Government would be in a better position to provide a clear time-table on the adoption of the draft law once it is presented to Parliament.

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

1164th meeting - Notes

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

Decisions

The Deputies

1. noted that the Turkish authorities reiterated the Government’s commitment and determination to adopt the draft law allowing the reopening of proceedings in the applicants’ cases;

2. noted in this respect that the Turkish Minister of Justice provided explanations to parliamentarians on the content of the draft law during the Parliamentary deliberations that took place in January 2013 and called upon the political parties to support its adoption;

3. expressed confidence that the Turkish Government and Parliament will translate their political commitment and determination to adopt the draft law into concrete action and to bring the legislative process to an end without further delay while bearing in mind that the case of Hulki Güneş became final in September 2003.

TURKEY

Application: 43647/98, 24240/07

Judgment final on: 21/03/2005, 20/06/2012

ORMANCI GROUP v. Turkey

ÜMMÜHAN KAPLAN v. Turkey

Enhanced procedure: Structural and complex problem / pilot judgment

Proposal to transfer the cases under standard procedure

Reference texts:

Action plan (11/01/2013) DH-DD(2013)82E

Decision adopted at the 1150th meeting (September 2012)

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

The European Court noted in the case of Ümmühan Kaplan that the repetitive violations found against Turkey on account of excessive length of proceedings have been continuing since a number of years and that this situation constituted a systemic and a structural problem in the Turkish legal order. The Court therefore decided to apply the pilot judgment procedure and held that Turkey should introduce an effective domestic remedy against excessive length of proceedings in line with the Convention principles as interpreted by the Court in its case-law. The Court also indicated that Turkey should introduce this remedy within one year after the judgment in the Ümmühan Kaplan case became final (the deadline will expire on 20/06/2013).

The Court decided to adjourn the examination of similar applications that had not yet been communicated to the Turkish Government and of those which would be lodged before 23 September 2012 (i.e. the date of the entry into force of right to individual application before the Constitutional Court). The Court would continue examining the applications that had already been communicated under the normal procedure.

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

Status of execution:

Individual measures: Proceedings in a number of cases that are being examined by the Committee under the Ormancı group are still pending at domestic level (see list of cases).

General measures: The Turkish authorities submitted an action plan on 11 January 2013 which sets out in detail the five main measures taken against excessive length of proceedings: judicial reform strategies, legal and administrative regulations, human resources developments, increase in budget, new court premises and computerised court management systems. The action plan also contains information on the introduction of domestic remedies against excessive length of proceedings. The detailed information presented is summarised below:

A. Measures taken with a view to shortening length of proceedings and improving the Courts’ efficiency

1. Judicial Reform Strategies

- The “Judicial Reform Strategy and Action Plan” was adopted by the Council of Ministers in 2009 with the aim of identifying the measures necessary to execute all the cases that are being examined by the Committee of Ministers. Following the adoption of the Strategy and Action Plan, all judicial institutions have prepared their own five year strategic plans. The Reform Strategy Plan will be updated in the course of 2013;

2. Legal and administrative regulations aimed at alleviating the judiciary’s heavy workload

- Basic codes (Criminal Code, Code of Criminal Procedure, Code of Civil Procedure, Code of Obligations and Commercial Code) were totally renewed since the Ormancı against Turkey judgement became final;

- A number of crimes have been de-criminalised and taken out of criminal courts’ jurisdiction;

- Reconciliation and mediation procedures have been introduced with the aim of encouraging out-of-court settlement options;

- The Ombudsman’s Office was set up in 2012 (it will be possible to bring administrative disputes before the Ombudsman’s Office instead of bringing them before administrative courts);

3. Human resources developments

- 293 new courts were opened in 2011;

- Number of judges and prosecutors has been increased from 8333 (in 2002) to 12494 (in 2012) (49.93% increase);

- Number of court staff has been increased from 23240 (2002) to 46791 (2012) (101% increase);

- Number of chambers and members of high courts have been increased;

4.  Increase in the budget 

- The budget allocated to the judiciary has been increased by 274% between 2006 and 2012 amounting to 2.160.204.449 Euro (in 2006 the budget allocated to judiciary was 785.569.491 Euro).

5.   New court premises and computerised court management systems

- 158 new court houses have been built between 2004 and 2012; the construction of 104 court houses is still ongoing;

- The National Judicial IT System (UYAP), which was set up in 2005 on a provisional basis, became operational all around the country in 2009. The UYAP system connects all courts, prosecutor offices and other judicial institutions and has the capacity of processing 10 million cases, 10 million enforcement files and 500 million documents each year;

B. Introduction of a remedy against excessive length of proceedings

- A general remedy: “Right to Individual Petition Before the Constitutional Court” was introduced in the Turkish legal system following the constitutional amendments of September 2010. The Constitutional Court started receiving applications on 23 September 2012;

- A specific remedy: “Law on the Settlement of Cases brought before the European Court of Human Rights by Means of Compensation” was enacted on 10 January 2013. This law aims at awarding compensation to litigants in cases in which their right to a fair trial within reasonable time has been violated. The law provides that a commission will be set up to examine such complaints. Four judges will be appointed by the Minister of Justice and an expert will represent the Ministry of Finance in the commission. The commission will decide whether or not the litigants’ right to fair trial within a reasonable time has been violated and, if so, will award compensation within 9 months after a complaint is lodged. Decisions given by the commission can be appealed to the Ankara Regional Administrative Court. The appeal proceedings should be finalised within three months after an appeal is lodged. Once a decision becomes final, the compensation should be paid by the Ministry of Finance within three months. Final decisions will be communicated to the court before which the lengthy proceedings are pending. According to the authorities, this communication will have an acceleratory effect on the pending proceedings. The commission will have the competence to examine applications concerning excessive length of proceedings that have been lodged with the European Court before 23 September 2012. It is expected that the Constitutional Court will constitute an effective remedy for those applications that will be lodged with the European Court after 23 September 2012 and for any other violation that might occur in the future.

Application

Case

Judgment of

Final on

43647/98

ORMANCI AND OTHERS

(list of cases)

21/12/2004

21/03/2005

24240/07

ÜMMÜHAN KAPLAN

20/03/2012

20/06/2012

1164th meeting – Notes

Measures taken with a view to shortening length of proceedings and improving the efficiency of functioning of courts: The information presented in the action plan appears promising in order to shorten excessive length of proceedings.

It is expected that the measures taken, in particular the increase in the budget allocated to the judiciary, the increase in the number of judges and prosecutors and legislative amendments explained above will have a significant impact in shortening excessive length of proceedings. However, detailed statistical information appears necessary in order to demonstrate the impact of these measures in concrete terms before all jurisdictions (i.e. administrative, civil, criminal, land registry, military and commercial courts), including before high courts.

Introduction of a remedy against excessive length of proceedings: It appears from the action plan that a compensation mechanism was set up with a view to responding to the Convention requirements set out in the case-law of the European Court (see, §72 of the Ümmühan Kaplan judgment). However, the effectiveness of this remedy will have to be tested in practice. In this respect, further information is necessary as to the functioning of the compensation commission in practice and in particular examples of decisions given by the commission, statistical information on the amount of compensation awarded in given cases and information as to whether the commission complies with the deadlines provided by the “Law on the Settlement of Cases brought before the European Court of Human Rights by Means of Compensation”.

Information on individual measures: Given that proceedings in certain cases examined under the Ormancı group are still pending at domestic level, information is awaited on the termination of these proceedings.

Decisions

The Deputies

1. took note with satisfaction of the information provided by the Turkish authorities in their action plan concerning a significant number of measures taken to resolve the problem of excessive length of proceedings;

2. noted that the legislative measures aimed at alleviating the judiciary’s heavy workload, the increase in the budget allocated to the judiciary and in the number of judges and prosecutors, as well as the measures concerning the computerised court management systems are expected to have a significant impact on shortening excessive length of proceedings;

3. invited the Turkish authorities to provide detailed statistical information in order to demonstrate that the length of proceedings before all jurisdictions has started decreasing as a consequence of the above-mentioned measures;

4. noted with satisfaction that, with a view to responding to the European Court’s request to introduce an effective remedy in the pilot judgment in the case of Ümmühan Kaplan, a compensation remedy was introduced by “Law on the Settlement of Cases brought before the European Court of Human Rights by Means of Compensation” on 19 January 2013;

5. invited the Turkish authorities to provide information on the functioning of the compensation remedy, in particular examples of decisions taken by the new commission which was set up under the new legislation, statistical information on the amount of compensation awarded in given cases and information as to whether the commission complies with the deadlines provided by the new legislation;

6. given that proceedings in certain cases examined under the Ormanci group are still pending at domestic level, invited the Turkish authorities to provide information on the termination of these proceedings;

7. in view of the above developments, decided to continue the supervision of these cases under the standard procedure.

UKRAINE

Applications: 40450/04, 56848/00

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

YURIY NIKOLAYEVICH IVANOV v. Ukraine

ZHOVNER GROUP v. Ukraine

Enhanced procedure: pilot judgment, complex problem

Reference texts:

Information documents CM/Inf/DH(2007)30rev, CM/Inf/DH(2012)29

CM/Inf/DH(2013)11

Interim Resolutions CM/ResDH(2008)1, CM/ResDH(2009)159, CM/ResDH(2010)222, CM/ResDH(2011)184, CM/ResDH(2012)234

Communication from the Registry of the European Court (21/01/2011) DH-DD(2011)54E

Communication from the Registry of the European Court (09/09/2011) DH-DD(2011)757E

Communication from Ukraine (03/06/2011) DH-DD(2011)433E

Communication from Ukraine (09/09/2011) DH-DD(2011)705E

Communication from Ukraine (30/07/2012) DH-DD(2012)775E

Communication from Ukraine (01/11/2012) DH-DD(2012)1065E

Communication from Ukraine (05/12/2012) DH-DD(2012)1139E

Press release issued by the European Court (29/02/2012)

Decision adopted at the 1150th meeting (September 2012)

Decision adopted at the 1157th meeting (December 2012)

Case description: Important structural problem of non-enforcement or delayed enforcement of domestic judicial decisions, mostly delivered against the State and against State enterprises, and 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 five Interim Resolutions so far (two before the pilot judgment and three since then; the last Interim Resolution was adopted at the last Human Rights meeting held in December 2012).

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 – see the Appendix to the updated memorandum CM/Inf/DH(2013)11).

General measures: Since the pilot judgment, the Committee has mainly concentrated on the issue of setting up domestic remedies: the law “On State guarantees concerning execution of judicial decisions” was adopted by Parliament on 5 June 2012 and entered into force on 1 January 2013. It introduced a new specific procedure for the execution of domestic judicial decisions delivered against the State 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 (i.e. before 1 January 2013), including those complained of before the Court and which are not covered by the aforementioned law, the Ukrainian authorities submitted that they intend to resolve this problem by introducing another special procedure, which is expected to start to operate in 2014. A separate draft law in this respect has been prepared and is currently under consideration by the Cabinet of Ministers after which it shall be further submitted to Parliament for adoption. No concrete timeline for its adoption has been provided.

In this context, it should be recalled that at the 1157th meeting (December 2012) (DH), the Committee adopted its fifth Interim Resolution on the non-execution problem in Ukraine (CM/ResDH(2012)234), “[urging] 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”, and “[encouraging] 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”.

Meanwhile, 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 applications raising similar issues and frozen as a result of the pilot judgment (there are currently about 3000 such repetitive applications against Ukraine pending before the Court). Since then, the Court has examined a total of 432 applications – Kharuk and others (116 applications), Alpatov and others (108 applications), Varava and others (119 applications), Robota and others (89 applications) –rejected a number of unilateral declarations proposed by Ukraine in some of these cases and concluded that at the moment, no domestic remedy existed for these applicants.

Further to the Ukrainian authorities’ comments received on 1 November and 3 December 2012 on the concerns set out in the memorandum CM/Inf/DH(2012)29, an updated memorandum has been prepared for the Committee’s 1164th meeting (March 2013) (DH) (see CM/Inf/DH(2013)11).

No information is currently available as regards the impact in practice of the new remedy legislation on the general problem of non-execution of domestic judicial decisions.

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

1164th meeting – Notes

The revised assessment prepared in the updated memorandum CM/Inf/DH(2013)11 reviews the information provided by the Ukrainian authorities in response to the memorandum CM/Inf/DH(2012)29, which had been prepared for the 1150th meeting (September 2012) (DH). It concludes that the concerns expressed earlier by the Committee have not been dispelled and that thus further action and detailed information is required, as follows:

On individual measures:

· The Ukrainian authorities should be urged to take rapidly the necessary individual measures to ensure the full enforcement of all domestic judgments delivered in the applicants’ favour in this group of cases and to provide information on progress achieved without further delay.

On general measures:

As regards the enforcement of new domestic judgments under the 2013 remedy law:

· It would be useful to receive a confirmation that the list of documents to be submitted under the new 2013 remedy law is established and that the new procedure is easily accessible.

· Information is awaited on the respect of the time-limits in practice under the new system set up by the 2013 remedy law, as well as on whether special situations requiring “special diligence” will be taken care of through practice directions or other similar means, in order to comply with the reasonable time requirement.

· The Ukrainian authorities should be encouraged to consider adopting additional measures, e.g. in the context of the ongoing amendment process of the 2013 remedy law, to secure execution and adequate compensation in all circumstances.

· It is necessary to receive a confirmation that the estimations of the State Bailiffs’ Service used for the draft State budget for 2013 were based on a full overview of all foreseeable State debts or debts by State companies falling under the 2013 remedy law, in order to assess the viability of the budgetary appropriations made.

· It is further necessary to receive information on whether the need to adopt amendments of other legislation by 1 January 2014 is obstructing an effective implementation of the 2013 remedy law, as well as on the relationship between the 2013 remedy law and other, special laws on moratoriums related to debts of State enterprises.

· The Ukrainian authorities should be reminded that measures are still urgently needed as regards the enforcement of judgments imposing non-pecuniary obligations. Concrete information in this respect, including a time-table for the adoption of the envisaged measures could be requested.

As regards the enforcement of already existing judgments and the planned 2014 developments:

· It would be useful to recommend to the Ukrainian authorities to include a clear link in the planned new draft law from which the three-month time-limit for creditors to submit applications starts to run.

· It would be further useful to recommend to the Ukrainian authorities to undertake an appropriate awareness-raising campaign, once the planned new draft has been adopted by Parliament.

· A detailed progress report in respect of the state of affairs of the new planned draft law is necessary, in due time for the 1172nd meeting (June 2013) (DH), as well as evidence of the development of a viable practice of friendly settlements and unilateral declarations.

It follows from the above that the measures already taken and still envisaged by the Ukrainian authorities have still not resolved all aspects of the problem of non-enforcement of domestic judicial decisions in Ukraine. In the meantime, the Court continues to be overburdened with repetitive applications. This situation continues to pose a serious threat to the rule of law and to the effectiveness of the Convention system. Urgent and immediate action is, therefore, still required by the Ukrainian authorities.

Decisions

The Deputies

1. took note of the updated memorandum CM/Inf/DH(20113)11 and endorsed the evaluation presented therein;

2. noted, as regards the execution of new domestic judgments, that a new system has eventually been set up following the entry into force on 1 January 2013 of a new remedy law (“on State guarantees concerning execution of judicial decisions”), but reiterated that questions persist, most notably as regards:

    - the effectiveness of the measures taken to ensure execution within a reasonable time in all situations, notably because of the inflexibility of the new system, including the level of compensation,

    - the absence of adaptation of other legislation (in particular the moratorium laws);

3. also noted the information given as to the viability of the budgetary appropriations foreseen to cover the costs of the new remedy law and stressed the importance of possibilities to increase funds throughout the year, if need be;

4. reiterated, however, their deep regret and concern that the problem of the non-execution of old, already existing, judicial decisions has still not been resolved and that legislation to this end still needs to be adopted; encouraged consequently the Ukrainian authorities to adopt with the utmost urgency the required legislation, taking into account the recommendations made in the updated memorandum, and to develop, awaiting the reforms, a viable practice of friendly settlements and unilateral declarations before the Court;

5. reminded, moreover, the Ukrainian authorities of the urgent need to resolve also the issue of non-enforcement of judicial decisions imposing non-pecuniary obligations and called upon them to provide concrete information on the envisaged measures, including a time-table for their adoption;

6. further reminded the Ukrainian authorities of their obligation to take urgently the necessary individual measures to ensure the full enforcement of all domestic judgments delivered in the applicants’ favour in this group of cases and to provide information on progress made without further delay;

7. insisted yet again that urgent and immediate action is still required by Ukraine to resolve this long-standing and overdue problem;

8. decided to declassify the updated memorandum CM/Inf/DH(2013)11.

UKRAINE

Application: 40107/02

Judgment final on: 10/05/2011

KHARCHENKO GROUP v. Ukraine

Enhanced procedure: complex problem

Reference texts:

Action plan (Kharchenko case) (09/11/2011) DH-DD(2011)1066

Action plan (Kharchenko case) (09/10/2012) DH-DD(2012)1180E

Revised action report (Balitskiy case) (08/08/2012) DH-DD(2012)1023

Revised action plan (Kharchenko case) (21/02/2013) DH-DD(2013)190

Communication from Ukraine (cases of Yuriy Nikolayevich Ivanov and Kharchenko (09/09/2011)

DH-DD(2011)705

Decision adopted at the 1144th meeting (June 2012)

Case description: Violations of the applicants' right to liberty and security due to deficiencies of current legislation and of its application by relevant authorities and domestic courts. The main problems are the following:

(a) the general practice of unregistered detention by the police; the general practice of using administrative arrest for criminal investigation purposes without safeguarding the detainee's procedural rights, in particular the right to a defence; detention without any judicial decision (e.g. during the period between the end of the investigation and the beginning of the trial); failure to state the grounds when authorising detention on remand and to set a time-limit for such detention (Article 5§1);

(b) failure to bring the arrested person before a judge promptly; failure to advance relevant and sufficient grounds for extending detention on remand as well as to consider any alternative preventive measure (Article 5§3);

(c) lack of a clear procedure in Ukrainian legislation which would allow speedy and due review of the lawfulness of detention on remand (Article 5§4); and

(d) lack of a remedy in Ukrainian legislation capable of providing compensation for the aforementioned breaches (Article 5§5).

In the Kharchenko judgment, the Court stressed the structural nature of the problem regarding the violations of unlawfulness and excessive length of detention on remand as well as the lack of judicial review of the lawfulness of detention. The Court indicated under Article 46 of the Convention that specific reforms in Ukraine's legislation and administrative practice should be implemented urgently so as to ensure their compliance with Article 5. The Court set a six-month deadline, i.e. by 10 November 2011, for the government to provide the Committee of Ministers with a strategy adopted in this respect.

In some of these cases, the Court also found other violations: poor conditions of detention in Kyiv pre-trial detention facility in 2001-2003 in the Kharchenko case (Article 3); and excessive length of criminal proceedings in the Boldyrev, Borisenko, Buryaga, Prokopenko, Rudenko, Vitruk and Yeloyev cases (Article 6§1).

Status of execution: The Committee of Ministers has been examining the issues raised by the cases since 20054.

Individual measures: It appears from the judgments in this group and from information provided by the Ukrainian authorities that none of the applicants is detained on remand anymore and that the criminal proceedings in all cases are closed.

General measures: As requested in the Kharchenko judgment, the Ukrainian authorities provided a reform strategy in the form of an action plan on 9 November 2011 (see DH-DD(2011)1066). The strategy appears to address both legislative measures as well as measures aimed at changing the administrative practice regarding the problems identified by the Court in its judgments. The main emphasis was put on the adoption of a new Code of Criminal Procedure which, according to the authorities, would eliminate legislative shortcomings underlying the recurrent violations of Article 5§§1, 3 and 4 of the Convention.

Furthermore, in a letter of 16/09/2011 to the Prosecutor General, Minister of Internal Affairs, Head of the Security Service, Head of the Tax Service, Head of Council of Judges, and the Head of the Council of General Courts Judges, the President of Ukraine called upon these authorities to review the pre-trial detention of persons currently detained on suspicion of having committed minor offences.

At its 1144th meeting (June 2012) (DH), the Committee invited the Ukrainian authorities to provide a comprehensive presentation of the changes introduced in the new Code of Criminal Procedure which are relevant for the execution of this group of cases, together with an assessment on how these changes remedy the shortcomings identified by the Court. It further invited the authorities to submit concrete information on the adoption of measures aimed at remedying the shortcomings identified by the Court in the administrative practice (in particular regarding the practice of unregistered detention by the police and the use of administrative arrest for criminal investigation purposes), as well as regarding the lack of an enforceable right to compensation for unlawful detention. Lastly, it encouraged the Ukrainian authorities to provide concrete and updated information on the progress in the implementation of the entire reform strategy, including the monitoring of the practice of the domestic courts.

In August 2012, the Ukrainian authorities provided in response further information related to the general measures in the context of the case of Balitskiy against Ukraine (see DH-DD(2012)1023) and in October 2012 in the context of the Kharchenko group of cases (see DH-DD(2012)1180). In both submissions, the authorities mainly referred to provisions of the new Code of Criminal Procedure (CCP) which entered into force on 20/11/20125. They also provided statistics on the application of detention on remand covering 2010, 2011 and the first half of 2012. However, the authorities did not provide the texts of the relevant provisions of the new CCP, nor made clear references to the articles in question, nor an analysis on how these provisions remedy the various shortcomings found by the Court.

General measures concerning violations due to excessive length of criminal proceedings and poor conditions of detention in pre-trial detention facilities are being examined in the context of the Merit and Nevmerzhitsky groups of cases, respectively.

Application

Case

Judgment of

Final on

40107/02

KHARCHENKO (list of cases)

10/02/2011

10/05/2011

1164th meeting – Notes

On the legislative measures:

The information provided on the legislative measures adopted in the form of a new Code of Criminal Procedure (CCP) appears promising (cf. also the Council of Europe expertise on the draft Code’s compliance with the Convention requirements, carried out in the framework of the EU/CoE Joint Programme entitled «Ensuring Transparency and Efficiency of the Judiciary in Ukraine» and available on the website of the Justice and Legal Co-operation Department of the Justice and Human Dignity Directorate). However it would be preferable if the Committee could undertake an in-depth evaluation of the developments which have taken place. However, this is currently not possible as important information is missing. It is regrettable that the Ukrainian authorities have not provided the information in a comprehensive form as requested by the Committee in its last decision adopted at the 1144th meeting (June 2012) (DH). In order for the Secretariat to prepare a memorandum on these legislative measures, it would thus be necessary to receive further clarifications from the Ukrainian authorities.

On the statistics:

The statistics on the application of detention on remand for 2010 until June 2012 seem to indicate a minor trend of decrease. However, the figures provided only cover the first six months of 2012 and relate to the period before the entry into force of the new CCP. At the same time, it should be noted that the percentage of the requests granted for the application of pre-trial detention has remained almost unchanged and rather high (i.e. 87.2% in 2010, 86.7% in 2011, and 85.2% for the first half of 2012). Hence it would be necessary to receive further statistical information, notably since the entry into force of the new CCP.

Other open questions:

Besides the adoption of the new CCP, the following questions equally remain open:

- Comprehensive information is awaited as regards the changes required in the administrative practice (in particular unregistered detention by police) and as regards an impact assessment of the functioning of the new CCP in practice.

- Information is still awaited on the measures taken to address the problem of the lack of an enforceable right to compensation for unlawful detention, as required by Article 5 § 5 of the Convention.

- Updated information is still required as regards the state of implementation of the entire reform strategy (including on the monitoring of the domestic courts’ practice) which was required by the Kharchenko judgment.

- It would further be useful to receive information on any training activities undertaken following the adoption of the new CCP for all relevant professions (i.e. judges, prosecutors, law-enforcement authorities and lawyers).

- Lastly, it would also be interesting to receive information on the outcome of the review of the pre-trial detention of persons detained on suspicion of having committed minor offences, as requested by the President in his letter of 16/09/2011, as well as whether the same review has been – or will be – made for persons detained on suspicion of having committed more serious offences.

Decisions

The Deputies

1. noted the recent information provided by the Ukrainian authorities, including at the meeting itself, related to the implementation of the reform strategy announced in November 2011 in response to the violations found by the Court in the Kharchenko group of cases and the Committee of Ministers’ earlier decisions;

2. noted that this information deals in particular with legislative changes adopted with a view to remedying the shortcomings found by the Court with respect to the system of detention on remand operating in Ukraine;

3. noted in this context the information presented on a number of connected questions regarding the practical implementation of the reforms by the police, the prosecution authorities and the courts, and also regarding the setting-up of a monitoring mechanism to allow a rapid assessment of the global efficiency of the new system;

4. instructed the Secretariat to prepare an in-depth analysis of the information presented;

5. encouraged the Ukrainian authorities to take advantage of the co-operation opportunities offered within the framework of the Human Rights Trust Fund (HRTF) project 18.

UKRAINE

Application 6492/11

Judgment final on: 19/11/2012

LUTSENKO v. Ukraine

Enhanced procedure: complex problem

Reference texts:

Case description: 7 violations of the right to liberty and security of the applicant (Articles 5 and 18) on various accounts in the context of several criminal proceedings initiated against him in November and December 2010.

Under Article 18, the Court noted that when it comes to allegations of political or other ulterior motives in the context of criminal prosecution, it is difficult to dissociate the pre-trial detention from the criminal proceedings within which such detention had been ordered. The circumstances of the present case suggest that the applicant’s arrest and detention, which were ordered after the investigation against him had been completed, had their own distinguishable features which allow the Court to look into the matter separately from the more general context of “politically motivated prosecution of the opposition leader” (§108). The prosecuting authorities explicitly indicated the applicant’s communication with the media as one of the grounds for his arrest and accused him of distorting public opinion about crimes committed by him, discrediting the prosecuting authorities and influencing the upcoming trial in order to avoid criminal liability. In the Court’s opinion, such reasoning by the prosecuting authorities clearly demonstrates their attempt to punish the applicant for publicly disagreeing with accusations against him and for asserting his innocence, which he had the right to do. The Court thus found that the applicant’s liberty was restricted also for other reasons than those permissible under the Convention (violation of Article 18 in conjunction with Article 5) (§§108-109).

The other violations found by the Court concern the arbitrary and unlawful arrest and detention on remand of the applicant and the fact that he was not informed about the reasons for his arrest (two violations of Article 5§1, one violation of Article 5§2, two violations of Article 5§3, and one violation of Article 5§4).

Status of execution: As the judgment became final on 19 November 2012, an action plan is currently awaited and the Committee of Ministers will be examining this case for the first time at its 1164th meeting (March 2013) (DH).

Individual measures: The Court granted the applicant just satisfaction in respect of non-pecuniary damage (paid on 17 January 2013, i.e. within the deadline).

General measures: The general measures related to violations of Article 5 are examined by the Committee in the context of the group of cases of Kharchenko against Ukraine.

Application

Case

Judgment of

Final on

6492/11

LUTSENKO

03/07/2012

19/11/2012

1164th meeting - Notes

As regards individual measures: In view of the findings by the Court as regards the violation of Article 18, it would be useful if the Ukrainian authorities could inform the Committee if, over and above the payment of just satisfaction, the domestic legislation or practice allows to erase, as far as possible, the consequences of the violation for the applicant. It is further noted that the criminal proceedings initiated against the applicant, in the context of which he was arrested and detained, are still pending at the domestic level. It would thus be useful to receive information if – and what consequences – the concerned domestic authorities and instances draw from the Court’s findings in the context of the pending proceedings.

As regards general measures: The question of the violations of Article 5 is dealt with in the group of cases of Kharchenko against Ukraine.

In view of the findings by the Court leading to its conclusion of a violation of Article 18, it would be useful if the Ukrainian authorities could inform the Committee about the measures adopted and/or envisaged to ensure that the domestic justice system guarantees respect for the fundamental requirements of the Convention, especially as far as the roles of prosecutors and judges are concerned.

Decisions

The Deputies

1. noted the complex execution questions raised by the violations found in the case of Lutsenko against Ukraine, in particular as regards the responses to the violation of Article 18, taken in conjunction with Article 5, of the Convention;

2. noted the information provided by the Government on the measures already adopted;

3. noted, as regards the individual measures, that the criminal proceedings engaged following the measures criticised by the Court are still pending at domestic level and requested the Ukrainian authorities to provide rapidly information on the consequences drawn by domestic courts and authorities from the judgment of the Court;

4. invited the Ukrainian authorities also to provide information on the measures adopted and/or envisaged to ensure compliance with Article 18, taken in conjunction with Article 5, of the Convention in the Ukrainian justice system;

5. recalled further that the issue of responses to other violations of the Convention related to detention on remand is dealt with in the context of the Kharchenko group of cases;

6. decided to come back to these issues, in the light of the information provided, at their 1172nd meeting (June 2013) (DH).

UKRAINE

Application: 41984/98, 66561/01

Judgment final on: 30/03/2005, 30/06/2004

NAUMENKO SVETLANA GROUP v. Ukraine

MERIT GROUP v. Ukraine

Enhanced procedure: complex problem

Reference texts:

Action plan(Naumenko Svetlana group) (15/06/2012) DH-DD(2012)709E

Communication from Ukraine (Merit group) (14/01/2013) DH-DD(2013)69E

Communication from Ukraine (Merit group) (11/02/2013) DH-DD(2013)138E

Decision adopted at the 1136th meeting (March 2012)

Case description: These groups of cases concern mainly the excessive length of civil (the Svetlana Naumenko group of 188 cases) and criminal (the Merit group of 46 cases) proceedings and the lack of effective remedies in this respect (violations of Articles 6§1 and 13).

Other violations found by the Court concern:

- the failure to enforce a domestic court decision (violation of Article 6§1 and Article 1 of Protocol No. 1 in the Chervonets, Chukhas, Shulga and Svetlana Naumenko cases);

- lack of a fair trial due to the application of the supervisory review procedure (violation of Article 6§1 in the Svetlana Naumenko case);

- the lack of relevant and sufficient grounds for the continued detention on remand of the applicants (violation of Article 5§3 in the Burov and Kolesnikov cases).

Status of execution: The Committee of Ministers has been supervising the execution of these groups of cases, which represent the second biggest problem in numbers of judgments against Ukraine (26% of all cases currently pending supervision), since 2004 and 2005, respectively.

Individual measures: Information is still awaited on measures taken to accelerate, to the extent possible, any proceedings still pending at the domestic level (see list of cases in the Svetlana Naumenko group and in the Merit group), as well as on measures taken to enforce the domestic court decision in the Chervonets case (no information on individual measures has been provided in the most recent information submitted by the Ukrainian authorities).

General measures: In their most recent information submitted on 10 July 2012, 14 January 2013 and 11 February 2013, the Ukrainian authorities mainly reported on legislative measures undertaken:

As regards proceedings concerning civil rights and obligations, the authorities mentioned the adoption of the Law on Judiciary and Status of Judges on 07/07/2010, which entered into force on 30/07/2010, and of amendments to the Code of Civil Procedure on 20/12/2011. According to them, by these developments, they have in particular:

- introduced a new court of cassation into the judiciary system (the High Specialised Court of Ukraine for Civil and Criminal cases);

- reduced the statutory time-limit for a case to be examined by domestic courts from 2 months to 1 month;

- revoked the appellate courts’ power to remit civil cases for fresh consideration to first instance courts;

- allowed courts to send summons by e-mail and fax;

- authorised parties to civil and administrative proceedings to submit appeals without having to seek prior leave for appeal; and

- introduced a one-year cut-off time-limit beyond which any appeal or appeal in cassation submitted belatedly by State authorities for whatever reason shall be declared inadmissible.

As regards criminal proceedings, the authorities mainly referred to the new Code of Criminal Procedure which was adopted on 13/04/2012 and entered into force on 20/11/20126 and which, in their view, contributes to resolving the problem of excessive length of criminal proceedings. In particular, according to them, the new Code:

- introduced the concept of “reasonable term” so as to ensure that the duration of pre-trial investigation and trial do not exceed a reasonable period of time. To do so, the following criteria are introduced: the complexity of the proceedings, the conduct of the parties to the proceedings and “the manner of the exercise of powers by the investigator, prosecutor and the court”;

- reduced the statutory time-limits for pre-trial investigation and certain phases of the trial (appointment of preliminary hearing and appointment of trial on merits);

- authorised the parties to submit their written comments and observations on the question of extension of the duration of pre-trial investigation to be decided by a prosecutor;

- introduced an “alternate judge” which is expected to remedy the problem of delays caused by the impossibility of the principal judge to be present at a hearing (because of illness, involvement in other cases, etc.);

- revoked the appellate and cassation courts’ power to remit cases for additional investigation;

- introduced additional sanctions for the prosecutor and parties to the proceedings for their failure to appear before court;

- introduced the possibility to conduct court proceedings through videoconferencing (distance proceedings).

Further, the Ukrainian authorities mentioned that in order to bring the court’s practice in line with the requirements of the concept of “reasonable term”, the High Specialised Court of Ukraine for Civil and Criminal Cases has drafted a Resolution of the Plenum, based largely on the Court’s case-law.

As regards effective domestic remedies for complaints concerning the length of judicial proceedings, no development in their introduction has been reported by the Ukrainian authorities. In this context, it should be recalled that previously, the Ukrainian authorities have informed the Committee on several occasions that draft legislation was being prepared in this respect.

It is recalled that the issues related to the non-enforcement of domestic judicial decisions and to the excessive length of detention on remand are being examined in the context of the Yuriy Nikolayevich Ivanov/Zhovner and Kharchenko groups of cases, respectively.

Further, the Committee of Ministers closed its supervision of the issues related to the supervisory review procedure (“protest”) at its 1028th meeting in June 2008 in the context of the Sovtransavto Holding case (see the volume of decisions CM/Del/Dec(2008)1028, 9 June 2008, also recalling its Interim Resolution CM/ResDH(2004)14 in which it welcomed the abolition of this procedure in Ukraine).

Application

Case

Judgment of

Final on

41984/98

NAUMENKO SVETLANA (list of cases)

09/11/2004

30/03/2005

66561/01

MERIT (list of cases)

30/03/2004

30/06/2004

1164th meeting – Notes

Over the last six months, and more recently in January-February 2013, the Ukrainian authorities have informed the Committee of Ministers of an entire range of measures taken and envisaged to address the problem of excessive length of proceedings, which has been pending before the Committee for more than a decade and which continues to generate numerous repetitive applications before the Court.

On the measures aimed at reducing the length of judicial proceedings:

The measures appear interesting and require an in-depth evaluation. For this, it would be necessary that the Ukrainian authorities transmit the texts of the legislation adopted and mentioned in the authorities’ submissions with clear references to the pertinent legal provisions, as well as the Resolution of the Plenum of the High Specialised Court. It is noted that for the group of excessive length of criminal proceedings (Merit), the authorities provided the text of the articles deemed relevant on 11 February 2013, without however any further analysis. The text of the articles relevant for the group on excessive length of civil proceedings (Svetlana Naumenko) is still awaited.

It would also be necessary that the authorities join to this additional information an analysis specifying how these measures will remedy all the various shortcomings found by the Court and indicating, notably, their impact in practice on the problem of the length of judicial proceedings. In this respect, it would be helpful that this analysis be accompanied with pertinent statistical information, broken down into the different levels of jurisdiction. In this respect, the authorities may find the various tools developed by the European Commission for the efficiency of justice (CEPEJ) useful.

Upon receiving this information, a memorandum could be prepared by the Secretariat, containing an assessment of the developments which have taken place.

On the issue of effective domestic remedies:

As regards the question of effective remedies, it should be recalled that since 2005, the Ukrainian authorities have informed the Committee on the preparation of draft legislation to amend certain legal acts which would, inter alia, set up a domestic remedy for complaints concerning the length of civil and criminal proceedings.

However, in their latest submissions, the authorities have mentioned no development in this respect. In particular, the Committee was not informed on the content of said draft legislation nor any time-table for its adoption. It must be emphasised that the Court continues to receive large numbers of similar complaints against Ukraine (approximately 500 complaints concerning civil proceedings and 200 complaints concerning criminal proceedings), indicating a potential risk for its system. Consequently, it is urgent that the Ukrainian authorities adopt concrete measures without further delay in order to introduce an effective remedy in line with the Convention requirements as elaborated by the case-law of the Court.

Decisions

The Deputies

1. noted the information provided by the Ukrainian authorities on the measures taken to address the persistent problem of the length of judicial proceedings, measures which seem promising;

2. invited the authorities to complete this information, in due time so as to allow an evaluation by the Committee at the latest at its 1179th meeting (September 2013) (DH), with an analysis specifying how these measures will remedy all the shortcomings found by the Court, as well as their impact in practice on the length of proceedings in civil and criminal matters;

3. instructed the Secretariat to prepare an assessment on the developments which have taken place upon receipt of said additional information;

4. reiterated their serious concern that, despite the Court’s numerous judgments and the Committee’s previous decisions calling upon the Ukrainian authorities to introduce effective domestic remedies for complaints concerning the length of judicial proceedings, no progress has been achieved in this respect;

5. strongly insisted that the Ukrainian authorities take the necessary steps without further delay with a view to setting up domestic remedies in line with the Convention and the Court’s case-law;

6. reminded the Ukrainian authorities of the need to provide information on the outstanding individual measures;

7. decided to come back to the questions raised by the present groups of cases at the latest at their 1179th meeting (September 2013) (DH).

C. Classification of cases7

Item 1

Classification of new judgments which became final before 4 January 2013

Decisions

The Deputies

1. noted that the following judgments have become final before 4 January 2013, 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

DH-DD(2012)1088, DH-DD(2012)850 rev

Decisions

The Deputies decided to confirm the classification of the following case under standard procedure:

REPUBLIC OF MOLDOVA / REPUBLIQUE DE MOLDOVA and / et RUSSIAN FEDERATION / FEDERATION DE RUSSIE

48787/99

ILAŞCU AND OTHERS

CM/ResDH(2007)106

08/07/2004

Grand Chamber

 

* * *

Item 2

Change of classification9

(a) from standard to enhanced

-

(b) from enhanced to standard

See Ormanci and Ümmühan Kaplan against Turkey

D. Supervision of payment of the just satisfaction

Decisions

The Deputies

1. noted that in the following cases, no information had been supplied to the Committee of Ministers or that the information supplied concerning the payment of the just satisfaction awarded by the European Court is incomplete;

2. invited the states concerned to supply information confirming payment of the sums in questions without delay.

Link to the list

* * *

E. Action plans

List of cases which became final after the entry into force of the new working method

and for which an action plan has been presented to the Committee since the last meeting

Decisions

The Deputies

1. noted that, in the cases below, action plans setting out the measures planned to abide by the judgments of the Court have been presented;

2. invited the authorities of the member states concerned to keep the Committee of Ministers regularly informed of the progress made in the implementation of these action plans.

Application

Requête

Case

Affaire

Judgment of /

Arrêt du

Final on /

Définitif le

Ref. doc

ARMENIA / ARMENIE

44068/07

POGHOSYAN

20/12/2011

20/03/2011

DH-DD(2013)107E

GERMANY / ALLEMAGNE

20578/07

ANAYO

21/12/2010

21/03/2011

DH-DD(2013)17E

17080/07

SCHNEIDER

15/09/2011

15/12/2011

DH-DD(2013)17E

9300/07

HERRMANN

26/06/2012

Grand Chamber

DH-DD(2013)19E

GREECE / GRECE

48883/07

MATHLOOM

24/04/2012

24/07/2012

DH-DD(2013)192F

HUNGARY / HONGRIE

5770/05

SOMOGYI

11/01/2011

11/04/2011

DH-DD(2013)183E

ITALY / ITALIE

32075/09

LORENZETTI

10/04/2012

10/07/2012

DH-DD(2013)122F

17972/07

ARRAS AND OTHERS

14/02/2012

14/05/2012

DH-DD(2013)186F

LITHUANIA / LITUANIE

34932/04

PAKSAS

06/01/2011

06/01/2011

DH-DD(2013)42E

MONTENEGRO

41158/09

KOPRIVICA

22/11/2011

22/02/2012

DH-DD(2013)61E

POLAND / POLOGNE

30909/06

PANAITESCU

10/04/2012

10/07/2012

DH-DD(2013)121F

ROMANIA / ROUMANIE

43982/06

M.B.

03/11/2011

03/02/2012

DH-DD(2013)64E

42390/07

B.

10/01/2012

10/04/2012

DH-DD(2013)64E

35032/09

AGACHE

04/10/2011

04/01/2012

DH-DD(2013)65E

Application

Requête

Case

Affaire

Judgment of /

Arrêt du

Final on /

Définitif le

Ref. doc

SERBIA / SERBIE

31925/08

GRUDIC

17/04/2012

24/09/2012

DH-DD(2013)50E

UKRAINE

59461/08

MATUSHEVSKYY AND MATUSHEVSKA

23/06/2011

23/09/2011

DH-DD(2012)1181E

29979/04

RYSOVSKYY

20/10/2011

20/01/2012

DH-DD(2013)130E

33108/05

OSHURKO

08/09/2011

08/12/2011

DH-DD(2013)131E

60846/10

NOWAK

31/03/2011

15/09/2011

DH-DD(2013)132E

UNITED KINGDOM / ROYAUME-UNI

27021/08

AL-JEDDA

07/07/2011

Grand Chamber

DH-DD(2013)62E

39401/04

MGN LIMITED

18/01/2011

12/06/2012

18/04/2011

12/09/2012

DH-DD(2013)71E

* * *

F. Adoption of final resolutions

The present document contains the 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)1164 Volume of Resolutions, in respect of the judgments listed below:

Resolution / Résolution

Application / Requête

Case / Affaire

Judgment or decision of / Arrêt ou decision du

Final on / Définitif le

 

AUSTRIA / AUTRICHE

CM/ResDH(2013)…

13281/02

GRÜNE ALTERNATIVE WIEN

29/11/2011

29/02/2012

 

BULGARIA / BULGARIE

CM/ResDH(2013)…

36036/04

MAKEDONSKI

20/01/2011

20/04/2011

 

BOSNIA AND HERZEGOVINA / BOSNIE-HERZEGOVINE

CM/ResDH(2013)…

53349/07

KAPOR

10/05/2012

Decision / décision

 

CROATIA / CROATIE

CM/ResDH(2013)…

25945/10

VAHTARIC

12/06/2012

Decision / décision

35708/10

GLUHAK

12/06/2012

Decision / décision

43780/10

CULIC

12/06/2012

Decision / décision

45370/10

BECIROVIC

12/06/2012

Decision / décision

45431/10

TOMAS

12/06/2012

Decision / décision

55181/10

BUKOVAC

03/07/2012

Decision / décision

55855/10

SARIC

12/06/2012

Decision / décision

61458/10

KESONJA

03/07/2012

Decision / décision

70405/10

SMAILAGIC

12/06/2012

Decision / décision

70413/10

GRACANIN

03/07/2012

Decision / décision

70488/10

GALOVIC

12/06/2012

Decision / décision

14895/11

MAJSKI

12/06/2012

Decision / décision

18113/11

MATUSAN

12/06/2012

Decision / décision

18175/11

MATUSAN

12/06/2012

Decision / décision

38570/11

MIOC

12/06/2012

Decision / décision

 

CZECH REPUBLIC / REPUBLIQUE TCHEQUE

CM/ResDH(2013)…

39822/07

TUPA

26/05/2011

26/08/2011

 

DENMARK / DANEMARK

CM/ResDH(2013)…

34032/11

A.M.A.

22/05/2012

Decision / décision

34036/11

A.M.O.

22/05/2012

Decision / décision

32936/10

B.A.S.

22/05/2012

Decision / décision

34718/10

F.A.X.

22/05/2012

Decision / décision

34022/11

S.S.

22/05/2012

Decision / décision

18483/11

HAIDARI

12/06/2012

Decision / décision

 

ESTONIA / ESTONIE

CM/ResDH(2013)…

17779/08

S.

04/10/2011

04/01/2012

CM/ResDH(2013)…

48132/07

ANDREYEV

22/11/2011

22/02/2012

CM/ResDH(2013)…

41653/05

KOCHETKOV

02/04/2009

02/07/2009

CM/ResDH(2013)…

59577/08

LEAS

06/03/2012

06/06/2012

 

FRANCE

CM/ResDH(2013)…

32476/06

Y.P. AND L.P.

02/09/2010

21/02/2011

CM/ResDH(2013)…

64780/09

H.R.

22/09/2011

22/12/2011

CM/ResDH(2013)…

29808/06

CHESNE

22/04/2010

22/07/2010

CM/ResDH(2013)…

18990/07

CONSORTS RICHET AND LE BER

18/11/2010

18/02/2011

CM/ResDH(2013)…

20429/07

LILLY FRANCE No. 2

25/11/2010

25/02/2011

CM/ResDH(2013)…

38410/97+

FONTAINE AND BERTIN

08/07/2003

10/11/2004

69678/01

COSSEC

14/12/2004

06/06/2005

8112/02

DE LUCA

02/05/2006

02/08/2006

97/03

MENVIELLE No. 2

16/01/2007

16/04/2007

20893/03

JULY AND S.A.R.L. LIBÉRATION

14/02/2008

14/05/2008

CM/ResDH(2013)…

54216/09

DE LESQUEN DU PLESSIS-CASSO

12/04/2012

12/07/2012

CM/ResDH(2013)…

30754/03

KLOUVI

30/06/2011

30/09/2011

CM/ResDH(2013)…

13290/07

RENAUD

25/02/2010

25/05/2010

CM/ResDH(2013)…

50698/09

LACNCY

22/02/2011

Decision / décision

CM/ResDH(2013)…

19606/08

PAYET

20/01/2011

20/04/2011

CM/ResDH(2013)…

32010/07

COCAIGN

03/11/2011

03/02/2012

CM/ResDH(2013)…

30345/05

JOUBERT

23/07/2009

10/12/2009

CM/ResDH(2013)…

18851/07

LAGARDERE

12/04/2012

12/07/2012

CM/ResDH(2013)…

25303/0810

STOJKOVIC

27/10/2011

27/01/2012

 

GERMANY / ALLEMAGNE

CM/ResDH(2013)…

64208/11

E.A.

10/07/2012

Decision / Décision

CM/ResDH(2013)…

1521/06

TSIKAKIS

10/02/2011

10/05/2011

 

HUNGARY / HONGRIE

CM/ResDH(2013)…

56719/09

ANDERKO

22/05/2012

 

66155/09

DENES

17/04/2012

 

67133/09

EGERSZEGI TANEP KFT

22/05/2012

 

19228/10

DUBASZ

19/06/2012

 

73736/11

PACSEK

17/04/2012

 

CM/ResDH(2013)..

22065/10

AMBRUS

13/11/2012

Decision / Décision

51762/08

BALOGH

23/10/2012

Decision / Décision

5309/12

BUDAHAZY II

05/06/2012

Decision / Décision

23141/12

DREGELY

02/10/2012

Decision / Décision

52087/09

GYORGY

03/04/2012

Decision / Décision

29839/12

HAVRILLA

16/10/2012

Decision / Décision

31157/09

HEGEDUSNE SCHMIDT

17/04/2012

Decision / Décision

38582/09

LABONCZ

17/04/2012

Decision / Décision

12144/09

LIPTAY

22/05/2012

Decision / Décision

37694/12

PALLO AND SZANTO

23/10/2012

Decision / Décision

29227/08

PAP

02/10/2012

Decision / Décision

66519/11

PETER

02/10/2012

Decision / Décision

19340/10

REKOSA

17/04/2012

Decision / Décision

54857/09

ROUBAL

17/04/2012

Decision / Décision

55294/09

SZALAI

22/05/2012

Decision / Décision

17883/12

SZILAGYI

16/10/2012

Decision / Décision

23315/12

VARASTEHPOUR

16/10/2012

Decision / Décision

 

IRELAND / IRLANDE

CM/ResDH(2013)…

35810/09

O’KEEFE

26/06/2012

Decision / Décision

CM/ResDH(2013)…

7812/04

SUPERWOOD HOLDINGS PLC AND OTHERS

08/09/2011

08/12/2011

Resolution / Résolution

Application / Requête

Case / Affaire

Judgment or decision of / Arrêt ou decision du

Final on / Définitif le

 

ITALY / ITALIE

CM/ResDH(2013)…

29313/09

ABBATE AND 3 OTHERS

12/04/2011

Decision / Décision

 

LUXEMBOURG

CM/ResDH(2013)…

76240/01

WAGNER AND J.M.W.L.

28/06/2007

28/09/2007

CM/ResDH(2013)…

2113/04

SCHNEIDER

10/07/2007

10/10/2007

 

REPUBLIC OF MOLDOVA / REPUBLIQUE DE MOLDOVA

CM/ResDH(2013)…

21274/05

DEMCENCO

13/03/2012

Decision / Décision

23003/05

PADURET

04/01/2012

Decision / Décision

10830/06+

GRINTEVICI

22/11/2011

Decision / Décision

41836/06

GHEORGITA

25/01/2011

Decision / Décision

488/07

DONCIU

11/10/2011

Decision / Décision

7170/07

GHETAN

06/09/2011

Decision / Décision

15279/07+

PECIUL, COJUHARI, MOROZOVA, NICOLAEV, ALEXEEV, RUSU, BUDEI, MUNTEAN, LOPATIUC AND PARA

07/09/2010

Decision / Décision

16128/07

COJOCARU, PECIUL, GOROBEŢ, PECIUL, BACIU AND MALENCHII

07/09/2010

Decision / Décision

16999/07

SAVCENCO

06/09/2011

Decision / Décision

42374/07

NACU

02/11/2010

Decision / Décision

26810/08

TRICOLICI

06/09/2011

Decision / Décision

54255/08

JUBIRCA

21/02/2012

Decision / Décision

52157/10

CUSNIR

29/05/2012

Decision / Décision

12765/04

POVESTCA

04/09/2012

Decision / Décision

 

POLAND / POLOGNE

CM/ResDH(2013)…

7705/05

A.K.

05/07/2012

Decision / Décision

11310/09

KARLINSKI

19/06/2012

Decision / Décision

18468/09

MARCHEL

03/07/2012

Decision / Décision

49655/09

KOSIOREK

11/04/2012

Decision / Décision

32582/10

TOBOLA

19/06/2012

Decision / Décision

36149/10

BREJWO

14/06/2012

Decision / Décision

37223/10

MALINOWSKI VIII

14/06/2012

Decision / Décision

45642/10

KARLINSKI

29/05/2012

Decision / Décision

55563/10

JEDRZEJEWSKI

29/05/2012

Decision / Décision

61865/10

ZIELINSKI

14/06/2012

Decision / Décision

62715/10

KOWALCZYK

29/05/2012

Decision / Décision

64813/10

WISNIEWSKI

29/05/2012

Decision / Décision

4725/11

JABLONSKI

14/06/2012

Decision / Décision

CM/ResDH(2013)…

18429/06

JAKOBSKI

07/12/2010

07/03/2011

CM/ResDH(2013)…

13453/07

WITEK

21/12/2010

11/04/2011

CM/ResDH(2013)…

20436/02

WOJTAS-KALETA

16/07/2009

16/10/2009

 

ROMANIA / ROUMANIE

CM/ResDH(2013)…

23782/06+

CONSTANTIN AND STOIAN

29/09/2009

29/12/2009

28823/04

BULFINSKY

01/06/2010

01/09/2010

CM/ResDH(2013)…

1505/02

REINER AND OTHERS

27/09/2007

27/12/2007

CM/ResDH(2013)…

34814/02

DIDU

14/04/2009

14/09/2009

 

RUSSIAN FEDERATION / FEDERATION DE RUSSIE

CM/ResDH(2013)…

37703/04

GALITROV

13/12/2011

 

38845/05

VIT

05/07/2011

 

33177/07

RZHAVIN

15/03/2011

 

47913/07

KISLITSINA

11/10/2011

 

39287/09

YEGOROV

22/11/2011

 

32002/10

LAKATOSH AND OTHERS

07/06/2011

 
 

SERBIA / SERBIE

CM/ResDH(2013)…

47997/06

BACKOVIC

07/02/2012

07/05/2012

CM/ResDH(2013)…

16792/06

RISTIC

22/05/2012

Decision / décision

24832/08

KATIC

08/03/2011

Decision / décision

Resolution / Résolution

Application / Requête

Case / Affaire

Judgment or decision of / Arrêt ou decision du

Final on / Définitif le

 

SLOVAK REPUBLIC / REPUBLIQUE SLOVAQUE

CM/ResDH(2013)…

69583/10

KLINOVSKA

10/07/2012

 

2489/10

KOVACOVA

03/07/2012

 

CM/ResDH(2013)…

35377/05

MICHALKO

21/12/2010

21/03/2011

44153/06

AYDEMIR

08/02/2011

08/05/2011

 

SWITZERLAND / SUISSE

CM/ResDH(2013)…

48848/07

ASSOCIATION RHINO AND OTHERS

11/10/2011

08/03/2012

 

“THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA” / “L'EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE”

CM/ResDH(2013)…

10895/05

NAKOV

28/06/2011

Decision / décision

49407/06

MRČESKI

14/12/2010

Decision / décision

2476/08

JANEV

28/06/2011

Decision / décision

38934/08

DUNIMAGLOVSKI

03/07/2012

Decision / décision

58925/08

ASANOV

03/07/2012

Decision / décision

22651/09

JAKIMOVIK

03/07/2012

Decision / décision

25040/09

SMILEVSKA

03/07/2012

Decision / décision

42704/09

LJUBOMIR STOJANOVSKI

03/07/2012

Decision / décision

62589/09

FETAI

03/07/2012

Decision / décision

 

TURKEY / TURQUIE

CM/ResDH(2013)…

3305/07

BELIREN

03/04/2012

 

37686/05

CICEK

03/07/2012

 

36247/06

YILDIZ

03/07/2012

 

12844/07

ESATOGLU

03/07/2012

 

16848/07

RUZGAR

03/07/2012

 

28229/07

PAPALYARIS AND MODAKI

03/07/2012

 

19125/08

AGAR

04/09/2012

 

43656/10

ACAR

04/09/2012

 

8243/08

BAKAL AND OTHERS

05/06/2012

 

10442/08

CELIKALP AND OTHERS

05/06/2012

 

10473/08

ERTURK

05/06/2012

 

27644/08

AKINTI

05/06/2012

 

18979/09

DOGAN

05/06/2012

 

26855/10

OZDEMIR

05/06/2012

 

26668/05

KOCYIGIT AND KEKLIOKOGLU

06/03/2012

 

34680/07

VAROL

06/03/2012

 

60429/08

DAL

06/03/2012

 

856/09

EREN

06/03/2012

 

1914/09

ORMEN

06/03/2012

 

41168/09

AVRAS AND OTHERS

06/03/2012

 

42290/09

UGURLU

06/03/2012

 

47782/09

ATIK

06/03/2012

 

56229/11

AY

10/05/2012

 

30252/06

RENCBER AND OTHERS

10/07/2012

 

2163/09

AKSOY

10/07/2012

 

25703/09

KOSAN AND HAZAR

10/07/2012

 

55271/09

PARLAK

10/07/2012

 

23422/10

OCAL

10/07/2012

 

72064/10

YILDIZ

10/07/2012

 

29082/11

KARAY

10/07/2012

 

34769/07

DONMEZ AND OTHERS

13/03/2012

 

1769/08

NARIN

20/03/2012

 

4856/05

TURHAN

22/05/2012

 

19165/06

BODUR

22/05/2012

 

25768/07

OZTURK

22/05/2012

 

3704/09

BALCI AND OTHERS

22/05/2012

 

45868/09

OZKAN

22/05/2012

 

Resolution / Résolution

Application / Requête

Case / Affaire

Judgment or decision of / Arrêt ou decision du

Final on / Définitif le

 

UNITED KINGDOM / ROYAUME-UNI

CM/ResDH(2013)…

39214/07

F.K.

04/01/2011

Decision / Décision

56387/07

WILKES

06/09/2011

Decision / Décision

19159/08

MALLA

06/09/2011

Decision / Décision

23276/09

ALEXANDER

29/05/2012

Decision / Décision

37685/09

BLACK

29/11/2011

Decision / Décision

39622/09

M.W.

30/08/2011

Decision / Décision

49113/09

L.R.

14/06/2011

Decision / Décision

53414/09

WANDLESS

20/03/2012

Decision / Décision

26393/10

BIRCH AND OTHERS

06/09/2011

Decision / Décision

29930/10

OKUONGHAE

24/01/2012

Decision / Décision

32666/10

X, Y AND Z

05/07/2011

Decision / Décision

71308/10

WACEY-GERMAINE

13/12/2011

Decision / Décision

61206/11

ASUQUO

10/07/2012

Decision / Décision

CM/ResDH(2013)…

4158/05

GILLAN AND QUINTON

12/01/2010

28/06/2010

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 These two last documents will be issued separately.

2 This application was lodged against Italy and Albania but the European Court found no violation in respect of Italy.

* 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 See for instance the case of Nevhmerzhitsky (No. 54825/00).

5 Date provided by the Ukrainian authorities in their communication, though the website of the Ukrainian Parliament (http://zakon4.rada.gov.ua/laws/card/4651%D0%B0-17) mentions 19/11/2012 as date of entry into force of the new Code.

6 Date provided by the Ukrainian authorities in their communication, though the website of the Ukrainian Parliament (http://zakon4.rada.gov.ua/laws/card/4651%D0%B0-17) mentions 19/11/2012 as date of entry into force of the new Code.

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 France and Belgium but the European Court declared inadmissible the complaints against Belgium. / Affaire contre la France et la Belgique mais la Cour européenne a déclaré irrecevables les griefs à l’encontre de la Belgique.



 Top

 

  Related Documents
 
   Meetings
 
   Other documents